A partial analysis of the Seventh Circuit Court’s recent opinion telling the Supreme Court how it should have been done.
Drawing your attention to the center ring, we hear Judge Wood say
The ink was barely dry on the pages of the Act when litigation began—ECF No. 170 - Robert Bevis v. City of Naperville, No. 23-1353, slip op. at 8 (7th Cir.) Wow, what sarcasm. Judge Wood, the only reason they waited until then was because they weren’t allowed to file before that moment. Your sarcasm is poor.
When courts are doing serious work, they speak and write in a serious manner.
Once the suit was filed and landed in—id. at 9 is not a serious statement. The case was assigned to Judge Kendall’s court. Judge Wood continues in the same way.
Judge Kendall’s court …
A more correct way of saying it would have been “The plaintiffs filed a motion for preliminary injunction.”
Judge Kendall used the Winter factors to deny a preliminary injunction. She said that the plaintiffs (good guys) were unlikely to succeed on the merits. Judge Kendall claims to have used Bruen but as we wrote before, it wasn’t a good opinion. See —Dunce in Judicial Robes Fails to Understand Bruen – Updated, Gun Free Zone (Feb. 20, 2023)
Judge Wood thinks that Friedman is still good law, even though it was a means-end finding. That was the actual question before the circuit court, is Friedman still good law.
One of Judge Kendall’s mistakes was that when she found that there was a history of the government regulating highly dangerous arms.
Judge Kendall’s efforts convinced her that “[t]he history of firearm regulation … establishes that governments enjoy the ability to regulate highly dangerous arms (and related dangerous accessories).”—Opinion in Robert Bevis v. City of Naperville, No. 23-1353, slip op. at 9 quoting Bevis v. City of Naperville she thought it applied to “assault weapons”.
The Heller Court told the inferior courts that an arm can only be banned if it is both unusually dangerous AND unusual.
If an inferior court is looking to ban an arm because it is “highly dangerous” this implies that they have already decided that it is an arm. Judge Kendal did us a favor because she stated, implicitly?, that magazines were arms. If it is an arm, and the modern regulation is a ban, the only thing the state (bad guys) must do to prevail is to prove that the arm is NOT in common use for lawful purposes.
It is not on the plaintiffs to prove that it is. It is not “in common use for self-defense”, it is not brandished, it is not fired/actively deployed, it is in common use for all lawful purposes.
That means that if you have a safe queen that is only brought out to clean and lube, it is still in use for lawful purposes.
Kentucky Ballistics has a punt gun reproduction. That thing is more of a cannon than a pistol. It is still an arm in use for lawful purposes.
Judge Wood then continues her laudatory telling of Judge Kendall’s wishful thinking.
Id. (quoting Kolbe v. Hogan, 849 F.3d 114, 137 (4th Cir. 2017) (en banc), abrogated on other grounds by Bruen, 142 S. Ct. at 2126–27) (cleaned up). Finally, the judge noted that the high-capacity magazines exhibited similar dangers. Id.
—id. at 9–10
In —Dominic Bianchi v. Brian Frosh, No. 21-1255 (Court of Appeals), the Fourth Circuit has heard oral arguments regarding “Is Kolbe still good law, post Bruen. The Fourth Circuit was the first circuit to hear arguments on a Second Amendment case after Bruen
The fact that Judge Wood seems to be giving so much weight to the District Court’s opinion, when that opinion was worse than junk, shows that the Seventh Circuit court is going rogue and attempting to hide behind the skirts of inferior courts.
The court wants this case to be safe from a Supreme Court slap down. Because of this, they attempt to use policy to allow them to give the anti-Second Amendment opinion they want.
We’ve talked about the stages in a case. The plaintiffs file a suit, they file a motion requesting a temporary (TRO) and preliminary injunction. The court decides on the initial filing if the TRO should be granted pending the decision on the preliminary injunction. Once the decision on the preliminary injunction has been given, the case moves forward towards a final judgement on the merits of the case.
At each step, the parties submit briefs in support of their position. There may or may not be hearings held to give evidence or to make arguments. In the end, the court issues a final judgement.
Until the final judgement is rendered, the case is in an interlocutory state. The Supreme Court does not like to take cases that are in interlocutory state, and the appellate courts, likewise, don’t like to hear cases at this stage.
The issue arises when there is irreparable harm being done to a party. If irreparable harm is in play, a superior court can be asked to intervene. Either to issue a stay or an injunction. In addition, there is often consideration of the status quo.
For example, if the law has been that people can make a right turn on red, after a full and complete stop, and the new law requires you honk your horn twice before turning right on red, that is a change in the status quo. The court is more likely to grant an injunction to preserve the status quo than to grant one that changes the status quo.
After Heller, it was possible to file suit against state laws on facial claims and to have standing. Before Heller, many anti-gun circuits reserved the right to keep and bear arms to the militia/state. When these suits were filed, the state could, and did, argue that the court should preserve the status quo, the infringements that were already in place.
The Winter factors, supported by Nken tell the inferior courts to first look at the merits, then irreparable harm, then balance of equities, and finally public interests. But, they do more than that. They also say that a
preliminary injunction is “an extraordinary remedy never awarded as of right.—Winter V. Natural Resources Defense Council, Inc., 172 L. Ed. 2d 249 (2008).
Here, the circuit court goes out of their way to emphasize this. It doesn’t matter. The Supreme Court has instructed the inferior courts that any infringement of a core constitutional right, that includes the Second Amendment, is irreparable harm.
What the circuit court is doing is depending on the inferior (district) court’s opinion to justify that the plaintiffs (good guys) are unlikely to succeed on the merits, without actually looking at the merits themselves. In violation of clear directives from the Supreme Court to the inferior circuit courts.
Judge Wood really needs to be taken to the woodshed and spanked, hard.
—Opinion in Robert Bevis v. City of Naperville, No. 23-1353, slip op. at 17
This is an example of argument by authority. Bork was a Reagan nomination to the Supreme Court. He was attacked by Senator Joseph Biden in the most vile of ways. It was the start of the Democrat methodology of making every Supreme Court nominee by a Republican a circus of unfounded accusations.
In a footnote, Bork writes:
—Slouching towards Gomorrah: modern liberalism and American decline, 34 Choice Reviews Online 34-4126-34–4126, 166 (Mar. 1997)
These are simple opinions. If it was the case that the Supreme Court consistently ruled that the Right of the People to Keep and Bear Arms was limited to the Militia, we would see citations from the circuit court. The lack of citations in Bork’s book is not meaningful because he isn’t writing a legal document.
Normal people don’t write articles with extensive legal citations. That would be weird.
According to Justia, there have been eight Second Amendment cases heard by the Supreme Court. —United States V. Cruikshank, 92 U.S. 542 (1876), —Presser V. Illinois, 116 U.S. 252 (1886), —United States V. Miller, 307 U.S. 174 (1939), —Lewis V. United States, 63 L. Ed. 2d 198 (1980), —District of Columbia v. Heller, 467 U.S. 837 (2008), —Mcdonald V. Chicago, 177 L. Ed. 2d 894 (2010), —Caetano v. Massachusetts, 136 S. Ct. 1027 (2016), and —New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022). To which Mark Smith adds —Staples V. United States, 128 L. Ed. 2d 608 (1994). Not one of those cases remotely suggests that the right to keep and bear arms is limited to the militia.
The absolute ranker and disrespect the Judge Wood shows for the Supreme Court shows in the following paragraph:
Id. This opened up new frontiers of litigation: Which weapons are covered? What manner of “keeping and bearing” is protected? What purpose must or may the user have? Which people hold this right? The Heller Court recognized that there was much left to be resolved. It did give some hints, however. One important tea leaf for present purposes was its refusal to endorse the idea that the Amendment protects “only those weapons useful in warfare.” Id. at 624. It called this a “startling reading,” since that would have implied that machineguns—quintessential weapons used exclusively by the military, not private citizens—could not be regulated, in the face of the National Firearms Act’s restrictions on those weapons. Id.; see also Pub. L. No. 73-474, 48 Stat. 1236 (1934).
—Opinion in Robert Bevis v. City of Naperville, No. 23-1353, slip op. at 17–18
The rudest jab, in my opinion, is
…machineguns — quintessential weapons used exclusively by the military … This is taking a direct shot at the Heller opinion calling the handgun the quintessential weapon for self-defense.
The Heller Court laid out the rules for inferior courts to follow. Look to the plain text of the Second Amendment. Don’t do anything fancy, don’t read into it words that are not there. Do not try to interpret it yourself, here is what the plain text of the Second Amendment is and what every part means.
If the plain text of the Second Amendment is implicated by the proposed conduct, then there must be a history and tradition of regulations to support the modern-day regulations.
The Heller court went on to say, “We are looking at the question of a ban on the possession of functional handguns. We have examined the history and tradition of arms regulations in the United States. We have found that if an arm is in common use for lawful purposes, it cannot be banned.”
According to The Bar Association of San Francisco, The Justice and Diversity Center,
If you wish to be taken seriously by the court, whether in oral or written argument, never malign or belittle your opponents or their position. Treat opposing counsel with respect, regardless of whether you feel they deserve it. This is a fundamental rule of courtroom etiquette and common decency.
I am so angry at the Seventh Circuit Court right now, I’m done for the night. Maybe more later.
The Seventh Circuit fails to follow the clear directives of the Supreme Court in Heller and in Bruen. They are still trying to keep Friedman alive. They are claiming that the case isn’t rip for them to look at the merits of the cases.
Two of the inferior courts said that the plaintiffs would lose on the merits, and we disagree with the third district court, so there is no irreparable harm, there is no likelihood of success on the merits. So we are going to say the injunction and let the inferior courts move to final judgement on the merits.
What should the plaintiffs do next? Don’t request an en banc hearing. That will just delay everything for another 6 to 12 months. Likely the best path forward is to move towards a final judgement in one of the district courts.
Regardless of the outcome of that case, it will be appealed back to the Seventh Circuit court, where the same three judge panel will hear the case.
At that point, the Seventh will have to go on record regarding the merits of the case.
At that point, it will be ripe for the Supreme Court to hear. Meanwhile, there are several cases that are at the final judgement state, at the district court levels. Some have already had oral arguments at the appellate level. One or more of those case might end up in the Supreme Court. At which point we should have another strong opinion supporting the Second Amendment.