Back in April of this year, a divided panel of the Seventh Circuit Court of Appeals upheld an ordinance in the city of Highland Park, a suburb of Chicago, which banned assault weapons and high capacity magazines against a Second Amendment challenge. The majority opinion was penned by Frank Easterbrook, a Reagan appointment. Because it was a divided decision, it is a good vehicle for en banc or even Supreme Court review. After defining assault weapons and large capacity magazines, the ordinance ordered those who already possessed them to either (1) keep them outside city limits, (2) modify them, or (3) surrender them.
Easterbrook was, if nothing else, original in his decision and attempted to turn the arguments against the law back on the plaintiff in this case. Those arguments are: (1) history, (2) federalism, (3) the “well-regulated militia” clause and (4) recent gun rights victories like Heller and McDonald. For good measure, he added a dose of social science. With this latter argument, he states: “That laws similar to Highland Park’s reduce the share of gun crimes involving assault weapons is established by the data.” Let’s take these arguments in turn starting with the social science assertions.
One does not know what studies Easterbrook is reading, but it is likely selective. In response to the 1994 assault weapon ban and its effect on reducing crime, the available studies are, at best, “mixed.” One study concluded that although crimes committed using assault weapons declined after the ban, that decrease was offset by the use of other firearms in the commission of crimes. In 2013, Wayne LaPierre and Diane Feinstein used this data from these studies to make equally compelling arguments for their respective sides which proves the research is “mixed.” Regardless, the introduction of social science into issues of constitutional jurisprudence is rife with pitfalls and leads to “legislation from the bench.” It is not the role of a court to parse through data and then selectively use that data to justify a position. That is the role of the legislative process. But, let’s assume the City Council of Highland Park did that and still passed the ordinance.
As for the history argument, Easterbrook uses the fact that in 1927, states began regulating the possession of machine guns and the federal government did so in 1934. He further states that nothing in Heller would have invalidated these laws although Heller did not specifically involve automatic weapons at all. He is reading something into Heller which he himself acknowledges is not in Heller. He then argues that laws he deems would have survived constitutional muster dating to 1927 means that more current bans on gun types would likewise survive muster. In his words: “Why should regulations adopted 130 years after the Second Amendment’s adoption…have more validity than those enacted another 90 years later?” The reason is simple: those previously adopted laws applied to machine guns, not assault weapons. We are talking about apples and oranges, but Easterbrook is equating the two. He further states that because no one challenged the constitutionality of the laws in 1927 or 1934 they therefore are constitutionally sound. Again, this is a specious argument. There are many instances of laws passed in bygone days that were never litigated. This term, the Supreme Court is taking up the issue of the definition of “conspiracy” under the Hobbs Act, a law passed in 1946.
With regards to the federalism argument, it is true that there is a hodgepodge of state laws and any actual or potential gun owner has to negotiate the regulatory process specific to their state. Even the definition of “assault weapon” differs from state to state. While attempting to use federalism against the plaintiffs, he actually makes a good case for the federalism argument given the fact that very few states actually ban assault weapons and the differing definitions indicate that states regulate differently in this area absent a federal law. Illinois does not have an assault weapon ban, so why should a subdivision of the state- a city in this case- be permitted to pass one?
As for the “well regulated militia” argument, the Left (and apparently Easterbrook) are clearly misguided. They conveniently forget the most important words of the 2nd Amendment: “…the right to bear arms shall not be infringed.” Obviously, weapons have evolved over the years, but the words of the Second Amendment have not. To illustrate the internal inconsistency of his entire argument, he notes that there are exemptions for law enforcement and national guard members possessing these weapons in Highland Park.
Why would there be these exemptions but for the fact they could be used for defensive purposes? Police do not possess and use assault weapons in an offensive nature, but for defense. Police do not adopt the slogan “To offend and serve.” Likewise with the military (hence the term national defense). The mere fact that an assault weapon could be used for defensive purposes as evidenced by the very exemptions written into the ordinance is justification enough under both Heller and McDonald to strike down the ordinance. Easterbrook even speculates on instances where assault weapons could be used as a defensive means of protection.
But Easterbrook does not see it that way in the end. In fact, he attempts to use these decisions without addressing, except in passing, self-defense as justification against the ordinance. The underlying principle in those decisions was probably one of the most fundamental human rights- that of self-defense. He intimates at self-defense through his examination of the exemptions, but seems to either ignore or discard the underlying principle. In that regard, he shows his ignorance in getting to a decision he believes is the correct one.
Perhaps the only thing he gets right is the fact the Supreme Court left open the level of review in analyzing gun laws. He refused to apply any tier of constitutional scrutiny and instead applies this test:
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.
Under this rubric, because states maintain the militias and the militias use firearms, the state can regulate firearms with impunity. Taken to its logical extreme, he intimates a state can then also regulate, including bans, other types of firearms besides assault weapons. As for the self-defense aspect, he believes that because only this type of weapon is banned and not other firearms like hand guns, John Q. Public has the necessary means of self-defense. In effect, he has created a test that opens the door for any firearm ban and it would be effectively be below the rational basis test. He set a very low bar.
For these reasons- the low bar, the faulty internal consistency in logic, and Supreme Court ambiguity with respect to scrutiny- the case is worthy of Supreme Court review. In fact, it has been appealed to the Court with amicus briefs being filed as late as August of this year.
In conclusion, this case illustrates two things. First, it is stretching arguments to reach a desired conclusion despite the actual wording of the Second Amendment. It places undue emphasis on the prefatory clause and ignores the operational clause of that Amendment. Second, it illustrates the utter lack of understanding of the criminal mind. The government can tomorrow pass a ban on the possession, sale, transfer or manufacture of assault weapons and criminals will still get their hands on assault weapons. The law-abiding gun owner in Highland Park is made the criminal because of the ordinance. It assumes a nefarious purpose behind it’s possession. Does the Left honestly believe the criminal is going to abide by these laws and dutifully surrender their weapons? If they care less about using the weapons in the commission of a crime, they care even less about a city ordinance banning their possession. At the end of the day, it simply leaves the assault weapons in the hands of the criminal element exclusively and how that enhances self-defense defies logic.