The Question

Does an ordinance that prohibits possession of assault weapons or large-capacity magazines violate the Second Amendment protections?

The City of Highland Park, IL, has an ordinance that does just that. Arie Friedman filed a lawsuit challenging the ordinance in state court in 2013. The city had it removed to the District Court of Northern Illinois. This isn’t uncommon.

There the District Court heard arguments and in September 2014, Judge John W. Darrah granted Summary Judgement to the city (bad guys). From there it was appealed to the Seventh Circuit Court.

The District Court followed the presidents provided to them by the Seventh Circuit court. The gist of which was to use the two-step shuffle and to consider anything that wasn’t a handgun used in self-defense outside the core protections of the Second Amendment.

The Analysis

Heller holds that a law banning the possession of handguns in the home (or making their use in the home infeasible) violates the individual right to keep and bear arms secured by the Second Amendment. But the Court added that this is not a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U.S. at 626, 128 S.Ct. 2783. It cautioned against interpreting the decision to cast doubt on “longstanding prohibitions”, including the “historical tradition of prohibiting the carrying of `dangerous and unusual weapons'”. Id. at 623, 627, 128 S.Ct. 2783. It observed that state militias, when called to service, often had asked members to come armed with the sort of weapons that were “in common use at the time”, id. at 624, 128 S.Ct. 2783, and it thought these kinds of weapons (which have changed over the years) are protected by the Second Amendment in private hands, while military-grade weapons (the sort that would be in a militia’s armory), such as machine guns, and weapons especially attractive to criminals, such as short-barreled shotguns, are not. Id. at 624-25, 128 S.Ct. 2783.
Friedman v. City of Highland Park, Illinois, 784 F. 3d 406 (Court of Appeals, 7th Circuit 2015)

Here the Judge explains that actually, “arms” means “handguns”, and only in the home. More so, when you muster for militia duty, you are supposed to bring your arms, but not arms that are “military-grade”. Instead, the militia would have “military-grade” weapons in the armory and issue them.

I’m not certain how anybody who made it through a single U.S. History, lesson covering the Revolutionary War could think this. The only “arms” that might be kept in the armory would have been cannon, powder, and other bulk items.

He goes on to opinionated that the plaintiffs (good guys) arguing that there was no historical ban on semi-automatic guns wasn’t good logic. If the court were to accept that there is no history or tradition of banning semi-automatic guns, then the same could be true of fully automatic guns. Since Heller deemed a ban on private possession of machine guns to be obviously valid.Id. Note that the Court did not actually quote Heller but instead gave their interpretation of Heller.

In addition, the Court claims that “machine guns are banned”, multiple times. It feels like he never bothered to actualactually read the NFA, nor to note it is a tax code. There is no ban on machine guns nor on sawed-off shotguns. There is a tax on them.

At the same time, the court gets some things right:

And relying on how common a weapon is at the time of litigation would be circular to boot. Machine guns aren’t commonly owned for lawful purposes today because they are illegal; semi-automatic weapons with large-capacity magazines are owned more commonly because, until recently (in some jurisdictions), they have been legal. Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity.
Id. at 409

Later you can see in the text that the court’s words that they hadn’t gotten the two-step shuffle perfected yet. Highland Park contends that the ordinance must be valid because weapons with large-capacity magazines are “dangerous and unusual” as Heller used that phrase. Yet Highland Park concedes uncertainty whether the banned weapons are commonly owned;Id. at 409 Highland Park is admitting that the definition of common use makes an arm “not unusual”. As soon as an arm is not unusual, it is protected under the Second Amendment.

Today we have Caetano V. Massachusetts, 194 L. Ed. 2d 99 (supreme.court 2016) which defines “in common use” to be anything greater than 200,000. In 2015, the question had not been answered. The Seventh Circuit court says that at 9% ownershipwith 9% of firearms owners having “assault weapons”, it is not clear if “assault weapons” are in common use.

It is important to also note that they are not arguing “in common use for self-defense”. In 2015, they could claim that 50 million in use wasn’t common. Today, they have to get it under that 200,000 threshold. In some arguments, they claim that the plaintiffs must prove that each individually banned model be “in common use for self-defense”.

The large fraction of murders committed by handguns may reflect the fact that they are much more numerous than assault weapons. What should matter to the “danger” question is how deadly a single weapon of one kind is compared with a single weapon of a different kind. On that subject the record provides some evidence. We know, for example, that semi-automatic guns with large-capacity magazines enable shooters to fire bullets faster than handguns equipped with smaller magazines. We also know that assault weapons generally are chambered for small rounds (compared with a large-caliber handgun or rifle), which emerge from the barrel with less momentum and are lethal only at (relatively) short range. This suggests that they are less dangerous per bullet—but they can fire more bullets. And they are designed to spray fire rather than to be aimed carefully. That makes them simultaneously more dangerous to bystanders (and targets of aspiring mass murderers) yet more useful to elderly householders and others who are too frightened to draw a careful bead on an intruder or physically unable to do so. Where does the balance of danger lie?
Id. at 409

The ignorance of anti-gunners reaches near infinity. “We know…enable shooters to fire bullets faster”, “We also know, … they can fire more bullets”, And they are designed to spray fire rather than to be aimed carefully.Id.. None of these statements are true. Yet the court assumes facts not in evidence to allow a balancing of danger to the public.

While the Second Amendment took the Heller, and McDonald cases to say that the Second Amendment was an individual right and that it applied to the federal and state governments. That “Shall not be infringed” is an unqualified command. The infringement loving courts took it to mean Instead the Court has alerted other judges, in Heller and again in McDonald, that the Second Amendment “does not imperil every law regulating firearms.”Id. at 410.

They focus, with laser like intensity, on the exceptions and the escape clauses, rather than the meat of the holding.

Here, the Court locks down their reason to allow this infringement:

But instead of trying to decide what “level” of scrutiny applies, and how it works, inquiries that do not resolve any concrete dispute, we think it better to ask 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.
Id. Internal citations omitted.

The state does not get to decide what is an “adequate means of self-defense”. This is a personal decision.

But states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms, so as to have them available when the militia is called to duty.Id. at 410 This is pure circular logic. This would allow the state to define what arms The People are allowed.

If criminals can find substitutes for banned assault weapons, then so can law-abiding homeowners. Unlike the District of Columbia’s ban on handguns, Highland Park’s ordinance leaves residents with many self-defense options.Id. at 411 Let that sink in, if you are law-abiding and want to have a banned weapon, you can just get it, like the criminals do. Is this Court actually suggesting that the plaintiffs violate the law?

This is the same type of argument that gun-grabbers make. “You say that gun owners are law-abiding. If a law is passed that bans guns, then owning a gun would be breaking the law. If you don’t give up your gun, then you are a criminal.”

True enough, assault weapons can be beneficial for self-defense because they are lighter than many rifles and less dangerous per shot than large-caliber pistols or revolvers. Householders too frightened or infirm to aim carefully may be able to wield them more effectively than the pistols James Bond preferred. But assault weapons with large-capacity magazines can fire more shots, faster, and thus can be more dangerous in aggregate. Why else are they the weapons of choice in mass shootings? A ban on assault weapons and large-capacity magazines might not prevent shootings in Highland Park (where they are already rare), but it may reduce the carnage if a mass shooting occurs.
Id. at 411

That laws similar to Highland Park’s reduce the share of gun crimes involving assault weapons is established by data.Id.. This quote is referencing the Koper survey, which has been called into question.

If it has no other effect, Highland Park’s ordinance may increase the public’s sense of safety. Mass shootings are rare, but they are highly salient, and people tend to overestimate the likelihood of salient events. If a ban on semiautomatic guns and large-capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.
Id. at 412

The Court literally says that increasingdecreasing the public’s perception of danger is a substantial benefit. The Court is about to use this to justify ripping your rights from you.


… The best way to evaluate the relation among assault weapons, crime, and self-defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court’s opinions. The central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process.

Another constitutional principle is relevant: the Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local governments, but it does not foreclose all possibility of experimentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim. Whether those limits should be extended is in the end a question for the Justices. Given our understanding of existing limits, the judgment is Affirmed

The Court, in this statement, guts the Constitution. He says that the legislation should decide on how to balance public need against individual rights. The Bill of Rights was that action. The People’s representatives, passed amendments to the new Constitution to define these rights. It is not up to the legislature to decide what the Constitution means or says. This was done at the time of adoption of the Bill of Rights.

In addition, the ratification of the 14th Amendment didn’t reset the meaning of the Second Amendment to that moment in time. The ratification of the 14th was the states being forced or accepting the meaning of the Second Amendment when the Second Amendment was ratified.

The Court just saidsays that even thoughtthough McDonald explicitly incorporated the Second Amendment, that it didn’t. Additionally, the Supreme Court’s words could be twisted, which allows this Court to ignore those words.


The author of this opinion was Circuit Judge Easterbrook, who authored the opinion discussed in Bad Judges Continue to Make Bad Opinions.

Bad judges continue to write bad opinions.


This paragraph needs to be examined. Look at the types of data that were being used in 2015 to justify an AWB.

That laws similar to Highland Park’s reduce the share of gun crimes involving assault weapons is established by data. See Christopher S. Koper, Daniel J. Woods & Jeffery A. Roth, An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003, Report to the National Institute of Justice, United States Department of Justice 39-60 (June 2004). There is also some evidence linking the availability of assault weapons to gun-related homicides. See Arindrajit Dube, Oeindrila Dube & Omar García-Ponce, Cross-Border Spillover: U.S. Gun Laws and Violence in Mexico, 107 Am. Pol. Sci. Rev. 397 (2013) (finding that Mexican municipalities bordering American states without assault weapons bans experienced more gun-related homicides than those bordering California, which had a ban).
Friedman at 411

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By awa

2 thoughts on “Bad Judge Writes More Bad Opinions — UPDATED”
  1. They might as well just come out and say “I’m ruling against this because I don’t like guns.”. The eventual SCOTUS ruling on AWB’s will certainly be interesting.

  2. I had to read and re-read this several times over and I still can not understand how these decisions can be defended or held up under scrutiny other than “because I say so and my friends have the guns”.

    Thank you for the in depth write up

Only one rule: Don't be a dick.

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