Federal Appeals Court Upholds Ban On Assault Weapons

The Seventh Circuit Court of Appeals has once again upheld a local ordinance banning assault weapons.

A Federal Court of Appeals in Chicago has once again upheld a local law barring so-called “assault weapons” from the community, setting up another major gun control case for the Supreme Court:

A federal appeals court in Chicago on Thursday upheld the dismissal of a lawsuit that challenged a ban on assault rifles in Cook County, saying the arguments were nearly identical to a previous failed suit brought against Highland Park.

In a 17-page ruling, the 7th U.S. Circuit Court of Appeals wrote the plaintiffs “have not come forward with a compelling reason to revisit our previous decision” in the Highland Park case, which set a legal precedent that was left in place when the Supreme Court refused to take up the issue in 2015.

A federal appeals court in Chicago on Thursday upheld the dismissal of a lawsuit that challenged a ban on assault rifles in Cook County, saying the arguments were nearly identical to a previous failed suit brought against Highland Park.

In a 17-page ruling, the 7th U.S. Circuit Court of Appeals wrote the plaintiffs “have not come forward with a compelling reason to revisit our previous decision” in the Highland Park case, which set a legal precedent that was left in place when the Supreme Court refused to take up the issue in 2015.

The outcome in this case was quite honestly never really in doubt, the fact that the Seventh Circuit had already ruled that a municipal law enacted by a Chicago suburb banning assault weapons was not unconstitutional and that this ruling has not been overturned, essentially meant that the three-judge panel that heard this appeal was bound by the precedent that was set in the earlier case. This is one reason why the opinion, which is embedded, below, is only 17 pages long.

Additionally, this ruling is just the latest example of a Federal Court rejecting a challenge to a state ban on “assault weapons” under the Second Amendment based on the Supreme Court’s ruling in D.C. v. Heller and McDonald v. Chicago. In those rulings, of course, which constitutes the Court’s first substantive look at the history, scope, and meaning of the Second Amendment in nearly a century and one of only a handful of such rulings in American history, the Court found that the Second Amendment protected an individual right and that, at the very least, this right included the right to own a handgun and keep it at home for self-defense. In McDonald, the Court extended that ruling to cover the states via the doctrine of incorporation as it has done with virtually the entire Bill of Rights. Since then, though, the nation’s highest court has not ruled on any significant challenge to Federal or state gun control laws and has instead allowed rulings from the lower courts upholding those laws to stand.

Specifically with respect to laws banning “assault weapons,” for example, no less than four separate Circuit Courts of Appeal have upheld challenges to state law bans on such weapons. The earliest such case came in 2011 in a case that has come to be called Heller II due to the fact that it involved essentially the same parties as in the Supreme Court’s 2005 ruling in District of Columbia v. Heller. In that case, the Court of Appeals for the D.C. Circuit upheld the District’s ban on “assault weapons,” finding that the ban did not impugn the right of self-defense on the right of self-defense recognized by the Supreme Court in the original Heller decision. Additionally, the Court held that the District had sufficient justification to believe that such weapons were too dangerous to be considered effective for self-defense and that such weapons posed “grave risks to bystanders and police officers. In early 2015, the Seventh Circuit Court of Appeals upheld a similar ban enacted by the City of Highland Park, Illinois. Several months later, the U.S. Court of Appeals for the 2nd Circuit reached the same conclusion in a case that challenged “assault weapons” bans enacted by New York and Connecticut that banned of “assault weapons” in the wake of the 2012 massacre at Sandy Hook Elementary School. Finally, and most recently, the Fourth Circuit Court of Appeals upheld a Maryland “assault weapons” ban in a ruling that was handed down just over a year ago.

As I’ve noted previously, the Supreme Court has declined to accept any of these cases for review.While the most we can say about this is that there were not four Justices who believed the Court should take up the cases for review, it does suggest that at least four now, the Justices are content to let these rulings upholding “assault weapons” bans across the nation stand. If nothing else, this sends a signal to Federal Judges in the lower courts that the Court is inclined to uphold those bans. Whether that signal is intentional or not, it is one that Federal Judges on both the District Courts and the Circuit Courts of Appeal are most likely taking to heart as this latest ruling demonstrates quite clearly.

In his opinion in this case, Judge William G. Young, a Reagan appointee who is now serving as a Senior Judge on the U.S. District Court of Appeals, made specific reference to the Supreme Court’s Heller decision and distinguished the Massachusetts law from the one at issue in Heller by specifically referencing Justice Scalia’s majority opinion. Essentially, Young found that the weapons impacted by the Massachusetts law did not fall within the scope of the type of weapons that Heller states were within the protection of the Second Amendment. In that opinion, Justice Scalia made clear that the Court’s ruling should not be construed to mean that every gun control measure violates the right protected by the Second Amendment:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

The Miller decision that Scalia makes reference to here is United States v. Miller a 1939 ruling from the Supreme Court upholding a law enacted in 1934 which placed restrictions on the ownership of the machine guns (i.e., fully automatic weapons) of the day and heavily taxed their owners. It’s clear that in this language, Scalia was intending to make it clear that Heller was not intended to overrule Miller and that it was also not intended to stand for the proposition that any regulation of weapons, including outright bans on the ownership and sale of certain types of weapons, was per se invalid under the Second Amendment. Based on that language, it seems clear that the argument that laws banning “assault weapons” are unconstitutional would face an uphill battle even in the conservative Supreme Court we have today and that the lower Federal Courts are likely to continue to uphold state and local, and if it ever came to pass Federal, laws banning such weapons in the future.

The Plaintiffs in this case basically have two options. One would be to attempt to get an en banc hearing by the full Seventh Circuit in the hope that doing so would lead to the reversal of the panel decision in their favor. The other option, of course, would be to seek a review from the Supreme Court. In that regard, it’s worth noting that the Supreme Court has declined to review any of the Court of Appeals decisions that have upheld bans on so-called “assault weapons” and it’s not clear that recent changes in the makeup of the Court will have any impact on that pattern. As such, this could be the end of the line for these Plaintiffs just as it has been for the Plaintiffs in the other cases.

Here’s the opinion:

Wilson v. Cook County by Doug Mataconis on Scribd

FILED UNDER: Guns and Gun Control, Law and the Courts, Second Amendment, U.S. Constitution, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. liberal capitalist says:

    Good.

    Add to this the WalMart and Kroger’s decision, maybe we are turning a corner?

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  2. Daryl and his brother Darryl says:

    IMHO…and I’ve said many times on this forum…banning AR-15’s, or the like, is a mistake.
    At what point does that ban then become any advanced technology deemed to be dangerous in the hands of the public? How soon before they come for high-performance vehicles? I have a Ducati that does 0-60 in about 2.5 seconds and tops out around 160 mph. How long before someone comes along and says I can’t have one because they are dangerous?
    I understand the argument that the 2nd Amendment considered the technology of the time, but even in the 18th century there were muzzle-loaders that were far superior to your run-of the mill muzzle-loaders. Then along came the Winchester rifle – it would hold 7 shots and had lever action!!! Oh my. When a laser pistol comes to the market, the AR-15 will seem just as quaint.
    I just think, on a very basic philosophical level, we need to be cautious about outlawing technological advancement.
    In addition, what do you do about the gazillion AR-15’s already in private ownership?
    What we do need to do is make the training and licensing commensurate with the purpose of these machines.
    These things are designed to kill people. Period. Full stop.
    The damage caused by a small caliber projectile, at extremely high speed, is devastating to the human body. We should make it extremely difficult to get licensed for one of these. Look at Iceland; tons of firearms, and an extremely rigorous licensing system. Also very few incidents of gun violence.
    We also need to require rigorous and on-going training, and mental evaluation. Well regulated, in the 2nd, meant well trained. Training and evaluation must be mandatory.
    And finally, we need to federalize the regulations. Guns crossing state lines is a major problem. Over 60% of the guns used in violent acts in Chicago are from neighboring states. The same regulations have to apply everywhere or they, in effect, apply nowhere.
    Make the regulations and training and evaluations a bitch to get thru…for all guns, not just AR-15’s…but don’t deny technology.

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  3. Daryl and his brother Darryl says:

    @Daryl and his brother Darryl:
    Plus…if you want to re-elect the fat orange blob in the White House…just run on outlawing and confiscating any guns of any type.

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  4. SC_Birdflyte says:

    I don’t know how well this would hold up against a constitutional challenge, but I would like to see a law passed which: a. Defines the types of weapons permitted for self-defense and sporting purposes; b. requires that anyone who wishes to own any other type of firearm must undergo a rigorous psychological evaluation to prove their fitness to own said firearms and; c. if they pass the psychological evaluation, pass a qualifying exam which requires demonstrating safe practices for use of said firearms, to be conducted by an accredited law enforcement agency. I think it would be worth the money required to defend such a law in court.

  5. Joe says:

    These things are designed to kill people. Period. Full stop.

    And therein, Daryl and his brother Darryl, lies the difference between an AR-15 and your Ducati.

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  6. Bob@Youngstown says:

    @Daryl and his brother Darryl:
    When your Ducati is the tool of choice to commit mass murder and terrorism, then I’ll be in the gang that wants them eliminated or restricted from public highways.

    what do you do about the gazillion AR-15’s already in private ownership

    How do you propose to “license and require rigorous and on-going training to the gazillion AR-15’s?

    This is not about inhibiting technology, this is about easy access to weapons that are designed to kill people. Period. Full stop”

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  7. Daryl and his brother Darryl says:

    @Joe:

    the difference between an AR-15 and your Ducati.

    I get that…that’s the hole in the typical rigght-wing “cars kill more people than guns” argument…but once someone starts deciding that technological advance is bad, then anything is fair game. Especially if someone more corrupt and more authoritarian that Trump comes along.

    “No Mr. Edison, we don’t want you messing around with this AC current thing. It’s dangerous, and it kills people. Gas lanterns are fine.”

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  8. michael reynolds says:

    @Joe:
    Indeed.

    Extend the metaphor: would we allow a car on the road that came fitted with a six foot wide blade on the front bumper? No, we would not. Because that would be crazy. Would we allow a food to be sold that we knew contained a fatal dose of strychnine? Nope.

    In fact, is there anything, in any category, that we allow to be sold which has as its sole purpose the taking of human life? No, we don’t. Despite @Daryl and his brother Darryl: many sensible arguments, many of which I support as being better than nothing, his analogy fails because there is no analogy.

    If Purdue Pharma is liable for damages due to massive misuse of a drug which actually does have legitimate uses, how could gun manufacturers not be liable for the many murders committed using a product they sell knowing that product has no function other than killing humans?

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  9. Daryl and his brother Darryl says:

    @Bob@Youngstown:

    this is about easy access to weapons that are designed to kill people.

    Exactly…but you can limit access thru licensing and training…and I would argue that this should also apply to every gun, not just assault rifles. (I would also argue that vehicular licensing should be far more rigorous, but that’s another discussion)
    This is similar to how Iceland does it. You want a killing machine? Prove beyond a reasonable doubt that you can handle that responsibility.
    https://grapevine.is/mag/feature/2017/07/06/90000-guns-but-no-gun-related-crimes/
    I’m telling you…you try to outlaw guns like this…and you won’t just have Trump in 2020, you’ll have Donnie Jr. in 2024. You will be demagogued to death. 70% support for banning assault rifles will flip, and grease balls will own the White House for the foreseeable future.

  10. Daryl and his brother Darryl says:

    @michael reynolds:

    his analogy fails because there is no analogy.

    I’m not making an analogy…I’m asking what’s next?
    And I’m certainly not arguing for more guns. We are all on the same side here…
    I’m only arguing that there are effective ways to prevent access that don’t require burning down the house.
    I have no idea why Australians went along with the gun buybacks in the ’90’s…I just know Americans won’t. Not ever.

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  11. Daryl and his brother Darryl says:

    @Daryl and his brother Darryl:
    I knew when I wrote this comment that it wouldn’t be popular. There is clearly a problem in America and it needs to solved. Where we disagree is how.
    But trust me, I know a fuq-lot of gun owners. (One of my brothers owns well over a hundred.) When I explain to them my stand, they are usually willing to listen, and generally agree. But if you start talking about outlawing and confiscation, you lose them in a nano-second.
    Like it or not American has a long history with guns…and they ain’t going away. Accept that reality and work within it if you really want to solve the problem.

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  12. Bob@Youngstown says:

    @Daryl and his brother Darryl:
    Would you go along with a restriction similar the National Firearms Act of 1934, that impacted (among others) machine guns?
    That Act, and subsequent laws, effectively moved machine guns off-the-shelf of the public market place.
    So today, you can own a machine gun, however the cost to register and qualify for that ownership is very costly, perhaps prohibitively so.
    Ask your gun-owning friends if they would sit by (or encourage) that approach.

    I can hear the chorus: SLIPPERY SLOPE SLIPPERY SLOPE … you’ll have to pry it out of my cold dead hands before the government takes the weapons away from us that we need to overthrow the government!

    BTW, there was a time when, to carry a concealed weapon (in many counties), one had to obtain a permit from …. your county sheriff who attested to your need and your character. Now-a-days you just signup for a NRA class (generating income for NRA) and pass a test. See how that works.

  13. Daryl and his brother Darryl says:

    @Bob@Youngstown:
    I’ve made my point.
    If y’all think extremism is going to solve this problem, have at it.
    You’ve seen what the right has done with the Green New Deal, a fairly modest proposal.
    IMHO…if AR’s are outlawed nationally Democrats will never be elected again.
    President Donnie Jr…it has nice ring to it, eh?

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  14. Bob@Youngstown says:

    @Daryl and his brother Darryl: You began “your point” with concern that an assault on AR-15’s was an assault on technology: “we need to be cautious about outlawing technological advancement.”

    Then you submit that “licensing commensurate with the purpose of these machines [AR-15s]” should be employed. I offered that approach (licensing) has been employed with respect to machine guns. If your gun-owing acquaintances are willing to endorse an NFA approach to AR-15’s then we have some real progress that can be made. (However among my gun-owning advocates, they consider that approach to be unconstitutional and an attempt to disarm the true patriots)

    So, if your idea (licensing akin to machine guns) were adopted and pushed by the democratic candidates, that the gun extremists would mount no substantial objection?

  15. gVOR08 says:

    @Daryl and his brother Darryl: @michael reynolds:
    There is a gentlemen’s agreement among bike manufacturers to limit top end after the one-upmanship got ridiculous. Somehow I have difficulty picturing gun and ammunition manufacturers agreeing to any voluntary limits. However I see there’s talk in the EU of mandatory limits on bikes.

    Designed purpose aside, the analogy between guns and motor vehicles also breaks down over the fact that we regulate the crap out of vehicles, and vehicle ownership and operation. So maybe it isn’t such a poor analogy after all and provides some guidance on what we might do. Background checks are sort of licensing requirements. I’ve liked the idea of mandatory insurance.

  16. michael reynolds says:

    @Daryl and his brother Darryl:

    If y’all think extremism is going to solve this problem, have at it.

    You are so missing the point. The gun lovers are the extremists. We are the moderates. You and @HAL9000 are similar in that you’re both intelligent, thoughtful people who suddenly drop 30 IQ points as soon as the topic turns to guns. The reason your argument here is failing is that you are using motivated reasoning, starting with an assumption that there should be private ownership of guns and attempting to make a case.

  17. Nate says:

    The author got Miller wrong, and that is an important segment of the Heller decision.

    Miller was concerning Short Barreled Shotguns (SBS- a shotgun having a shoulder stock and a barre less than 18”). This is an important distinction as in Miller, the court did indeed say “in common use at the time”, but it was referenced to military service. Simply put, because SBS’s were not an article of state and national defense, they were not covered under the second amendment. Let me make this clear: Miller was not about Machine guns. Machine guns were not the subject of the case, despite being a part of the law enacted. This also means, according to Miller, the only arms which are protected, are those suitable for military service. Today, that would actually include SBS’s, but not the majority of hunting firearms.

    Why the court has chosen not to take this up, is beyond me: an “assault weapons ban” does indeed fly right in the face of Miller and Heller. When they do take it up- and I imagine they will at some point, I would expect these lower court decisions will be reversed.

  18. Gustopher says:

    @Daryl and his brother Darryl:

    How soon before they come for high-performance vehicles? I have a Ducati that does 0-60 in about 2.5 seconds and tops out around 160 mph. How long before someone comes along and says I can’t have one because they are dangerous?

    If we aren’t banning new combustion engine cars in 10-15 years, and starting a buyback a few years after that, then we are probably fucked on global warming.

    This sort of informs my views on gun control — 30-40,000/yr is trivial compared to an existential threat. All things being equal, is rather they not die, but all thins are not equal.

    Happy for the Democrats to champion background checks and other things with 80+% approval, because opposing that is a liability for the Republicans whenever the contrast is drawn. Idiot Rep. Eyepatch I Am A Veteran can add a rider to allow him personally to loan his guns to his friends, or to allow pre-checks, or a loan exemption — I don’t care.

    In addition to future gun victims, I am also willing to sell out LGBTetc folks (despite being in that group), brown people to some extent (there are a lot of them, but most of the people affected by global warming first will be brown folks, so if it’s just wages or something, sure), women (being paid roughly 70 cents on the dollar before societal collapse beats societal collapse), immigrants, and young adult authors (round them up and put them in re-education camps!).

    Once I have given up completely on global warming and think we are doomed, then I will be all for protecting LGBTetc above all others. Might as well ride out the fall of civilization as we know it in comfort. Not there yet.

  19. Just nutha ignint cracker says:

    …one had to obtain a permit from …. your county sheriff who attested to your need and your character.

    Having lived in small towns–live in one right now, in fact–I am aware of how the whole “county sheriff who attested…” thang works. That the NRA makes money on concealed weapons classes is the effect of having gone into business, but it doesn’t make this system more corrupt or corruptible than the past one.

  20. Daryl and his brother Darryl says:

    @michael reynolds:
    Probably no one is paying attention to this any longer, but…
    On the spectrum one extreme is for everyone to have a gun, and the other is for no one to have a gun.
    A moderate position is just don’t let people who shouldn’t have guns, have guns.

  21. michael reynolds says:

    @Daryl and his brother Darryl:
    No. Sorry. Step out of the distorted US perspective and the moderate position is ‘some well-regulated people should have guns.’ The extreme position is ‘anyone who wants a gun should be able to get a gun.’

    Our national attitude on guns is way out of step with the entire developed world. We are fking crazy.