A divided federal appeals panel has refused to block the state of Illinois from enforcing its ban on so-called "assault weapons," because the court ruled the weapons banned by the law are too dangerous and are too similar to weapons used by the U.S. military, so they aren't protected by the Second Amendment.
A dissenting judge, however, said the ruling's reasoning conflicts with recent U.S. Supreme Court decisions upholding Americans' rights to keep and bear arms. That judge further said the ruling would essentially empower the U.S. Armed Forces to determine the kinds of firearms Americans are allowed to own and use, while giving state officials, like the Democrats who dominate Illinois, broad leeway to continue treating the Second Amendment as a second-class right.
On Nov. 3, a three-judge panel of the U.S. Seventh Circuit Court of Appeals in Chicago ruled 2-1 to deny a request by Illinois gun owners for an injunction that would put enforcement of the gun ban provisions of the so-called Protect Illinois Communities Act on hold while constitutional challenges to the law play out in court.
Seventh Circuit Judge Diane Wood
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The majority decision was authored by Seventh Circuit Judge Diane P. Wood, an appointee of former President Bill Clinton, a Democrat.
She was joined in the majority opinion by Circuit Judge Frank Easterbrook. He was appointed to the court by Republican former President Ronald Reagan. However, Easterbrook has notably authored two past decisions upholding "assault weapons" bans enacted locally in north suburban Highland Park and in Cook County.
Seventh Circuit Judge Michael B. Brennan dissented. Brennan was an appointee of former President Donald Trump.
While the appeals panel heard arguments in the case at the end of June, the panel delayed its ruling until less than two months remained before the effective provisions of the law are set to take effect.
Signed by Democratic Illinois Gov. JB Pritzker in January, the law banned a long list of semiautomatic firearms state lawmakers deemed to be overly dangerous "assault weapons," along with various firearm accessories. That included so-called "large capacity" ammunition magazines, which are capable of holding more than 10 rounds in a clip.
The state also would require current owners of those weapons to register their weapons with the state. The registration period began in October.
Those in defiance of the law, which takes effect Jan. 1, could face criminal charges, which could subject them to steep fines or imprisonment.
Pritzker and other supporters of the law say it is needed to restrict the ability of people to acquire the “assault weapons” and reduce the risk of future mass shootings, such as the massacre carried out by a lone gunman possessing an “assault rifle” at the Fourth of July parade in Highland Park in 2022.
With millions of Illinoisans potentially facing felony charges under the law for exercising what they believed were their Second Amendment gun ownership rights, lawsuits came quickly across the state challenging the law as unconstitutional.
Most of the lawsuits challenged the law on the basis that it violates the Second Amendment, particularly as that amendment has been interpreted in recent U.S. Supreme Court decisions.
The Illinois Supreme Court, which is led by a Democratic 5-2 supermajority, dispatched lawsuits challenging the law on various other legal grounds in August. That decision, however, did not directly address whether the law violated the rights of Illinoisans to keep and bear arms.
In federal court, two Chicago federal judges differed with a federal judge in southern Illinois on whether the law can withstand constitutional challenges under the Second Amendment legal tests established by the U.S. Supreme Court under its holdings in the cases known as District of Columbia v Heller and New York State Rifle and Pistol Association v Bruen.
Those rulings require states that want to ban certain guns to prove that the weapons being banned are both dangerous and unusual, and require lawmakers to demonstrate the regulations are in keeping with the United States' history and tradition dating back to ratification of the Second Amendment in 1791 and the Fourteenth Amendment in 1868.
The Chicago federal judges said they believed the Second Amendment is no obstacle for Illinois Democrats, who merely need to label the weapons "particularly dangerous" to ban them.
Their counterpart in southern Illinois, however, ruled the state law falls far out of bounds set by the U.S. Supreme Court.
The decisions were all appealed to the Seventh Circuit.
There, Wood and Easterbrook sided with the Chicago federal judges, saying they believed the state should be free to ban the weapons, such as the AR-15 semiautomatic rifle, in large part because such weapons are too close to weaponry used by the U.S. military.
"We come to this conclusion because these assault weapons and high-capacity magazines are much more like machineguns and military-grade weaponry than they are like the many different types of firearms that are used for individual self-defense (or so the state legislature was entitled to conclude)," Wood and Easterbrook wrote.
To back this conclusion, Wood and Easterbrook relied heavily on reasoning used by Easterbrook in his decision upholding Highland Park's local "assault weapons" ban ordinance, in the decision known as Friedman v Highland Park.
In that decision, Easterbrook and his colleagues determined that the Second Amendment does not prevent governments from banning weapons - even entire categories of widely owned and used firearms - so long as they do so in the name of public safety.
While Friedman was decided before Bruen, Wood and Easterbrook said they believed the reasoning in Friedman was not undone by Bruen, in large part because state and federal governments have long been allowed to prohibit Americans from owning and using weaponry used by the U.S. military.
In their new ruling, Wood and Easterbrook acknowledged the weapons banned under Illinois' law are not actually used by the U.S. Armed Forces.
However, they said the weapons are similar enough to weapons that have been used by American soldiers to allow the state to ban them now.
They particularly pointed to the AR-15, which is the semiautomatic version, made for civilian use, of the M-16, an automatic rifle formerly used by the U.S. military.
They said the danger presented by such weapons to the public means the weapons should be considered "military" weaponry that cannot be considered "bearable arms" strictly protected by the Second Amendment. While states and local governments can permit civilians to own and use such guns, Wood and Easterbrook said they also can regulate or outright ban the ownership and use of the firearms without violating the Second Amendment.
"... The relevant question is what are the modern analogues to the weapons people used for individual self-defense in 1791, and perhaps as late as 1868," Wood wrote. "This would exclude the weapons used exclusively by the military - and every Framer of the Second Amendment was well aware by 1791 that the King of England had an impressive standing army, and that such weapons existed.
"The weapons used for self-defense are the ones that (recent Supreme Court decisions) had in mind - not a militaristic weapon such as the AR-15, which is capable of inflicting the grisly damage described in some of the briefs."
In dissent, Brennan said Wood and Easterbrook were wrong to conclude that the reasoning of the Friedman decision had been tossed out by the Bruen ruling.
Saying it creates a "military veto," Brennan said the ruling essentially means that the definition of the arms protected by the rights enshrined in the Second Amendment could be turned on and off by equipment decisions made by the U.S. Armed Forces.
"... Because the majority opinion defines a military weapon as any that 'may be essentially reserved to the military,' a weapon’s characteristics are not relevant to how it is categorized. Thus, any combat weapon would be a military weapon," Brennan wrote in his dissent. "This effectively allows the U.S. Armed Forces to decide what 'Arms' are protected under the Second Amendment."
"... The military's decommissioning and sale of its surplus weapons would mean that the Second Amendment right might spring into and out of life," Brennan wrote.
Among other examples, he pointed to the military's commissioning of the Beretta 92 pistol. Firearms maker Beretta sells the M9 pistol, which is that weapon's civilian counterpart, and which, like the AR-15, is widely owned and used by Americans for self-defense and other purposes.
"Under the majority opinion, the military's decision to award a military contract for the Beretta 92 would take the firearm out of the 'Arms' protected by the Second Amendment," Brennan wrote.
Brennan said the Supreme Court's holdings in Bruen and Heller make it clear that commonly owned weapons - even those states and judges may believe are too "dangerous" - are protected by the Second Amendment.
While the injunction request was denied, the legal challenges to the law are continuing.
Gun owners may also seek to appeal the decision to the U.S. Supreme Court now, rather than wait potentially years more for the overall decision to percolate through the courts.
Illinois' law also may stand or fall based on other potential Supreme Court rulings in other challenges to other "assault weapons" ban in other Democrat-dominated states, such as California.
In California, a federal judge in San Diego has repeatedly declared that state's "assault weapons" ban law unconstitutional, yet has been overturned by the U.S. Ninth Circuit Court of Appeals. Following the Bruen decision, the Supreme Court sent the case back to California federal court for another look. District Judge Roger Benitez again ruled the law unconstitutional. The case is pending again before the Ninth Circuit.