CHICAGO (CN) – The 7th Circuit appeared skeptical of both sides Thursday as it heard arguments over an affluent Chicago suburb’s ban on assault weapons, with one judge bemoaning the Supreme Court’s failure to provide guidance on how to legally distinguish bazookas from pistols.
In June 2013, the city of Highland Park passed a complex ordinance prohibiting the possession, sale, or manufacture of certain types of weapons and large capacity magazines. Punishments include fines and up to six months of imprisonment.
The ban includes semiautomatic pistols with fixed or large capacity magazines, semiautomatic shotguns able to accept detachable magazines and various modifications such as telescoping stocks, barrel shrouds and muzzle brakes. It does not cover permanently inoperable weapons or those designed for Olympic target shooting.
Government officials, peace officers and military personnel are exempt to the extent that they are authorized to possess such weapons in the scope of their duties.
According to a ruling written by U.S. District Judge John Darrah, this was “based on the belief that certain designated weapons pose an undue threat to public safety” and “was particularly intended to address the potential threat of mass shootings involving semi-automatic weapons like those in Aurora, Colorado (12 killed, 58 injured); Newtown, Connecticut (28 killed); Casas Adobes, Arizona (six killed, 14 injured); and Santa Monica College in Santa Monica, California (six killed, two injured).”
Darrah’s opinion specifically pointed out that Highland Park is home to several places where people congregate, several schools and the popular Ravinia Music Festival.
The Illinois State Rifle Association and an individual gun owner, Dr. Arie S. Friedman, sued to stop the ban just before it went into effect, but Darrah threw out their suit, holding the ban served important public interests and did not violate the Second Amendment.
The 7th Circuit held oral arguments on the lawsuit Thursday in a courtroom filled with interested community members. Several times during the plaintiffs’ poetic waxing on the merits of assault weapons, a small boy in a baseball T-shirt turned for approval to his father, who nodded vigorously.
Plaintiffs’ attorney James Vogts was calm and collected throughout the proceedings, insisting that these weapons are so common that banning them would be unconstitutional.
“The Supreme Court made it clear in Heller that law abiding people have a core constitutional right to keep commonly owned firearms in their homes.”
But U.S. Circuit Judge Frank Easterbrook cut him off abruptly: “What if somebody decides to possess a bazooka?”
“It’d fall into a longstanding prohibition,” Vogts replied.
“No, there’s no such prohibition; they were only invented recently. It was once perfectly legal to own automatic weapons like Tommy guns.”
“But that dates back 80 years ago.”
Easterbrook was not convinced. “Yes,” he said, “but the Second Amendment dates back to the 18th century. Why does that matter? I don’t see how you can say fully automatic weapons are okay to ban because some states banned them in the 1950s. How is it rational to distinguish a ban laid down 150 years after the Second Amendment from one laid down 200 years after?”
Vogts stuck to his position. “The firearms here are without question some of the most commonly used. One out of nine guns sold since the invention of AR-type rifles is an AR rifle.”
Adam Lanza used such a weapon, a Bushmaster carbine, to shoot his way into Sandy Hook Elementary in 2012.
U.S. Circuit Judge Ann Claire Williams took the torch from Easterbrook and cut in: “Can a city ban fully automatic weapons? What if machine guns became common?”
“That’d be viewed under Heller as one of those longstanding bans,” the attorney replied.
“But you haven’t pointed to one study showing that assault weapons are better for self defense than handguns,” the judge said.
Vogts was clearly prepared for this. “They are accurate, reliable and easy to use. They have many attributes useful for self-defense. They are some of the safest as well because they use lightweight rounds less likely to go through walls and hit a family member during self-defense. This is essentially the technological evolution of firearms.”
Highland Park’s attorney, Christopher Wilson, generally seemed far less prepared for the grilling he received. He repeatedly stumbled and referred to Blackstone before an impassive Easterbrook.
“This doesn’t implicate Heller or the Second Amendment …” Wilson began.
Easterbrook laughed: “That’s ridiculous! Of course it implicates it.”
“No,” Wilson replied, ” the right is not a right to carry just any weapon, but a right to carry handguns.”
Easterbrook picked up the plaintiffs’ logic: “The Supreme Court said that commonly owned weapons are covered, and plaintiffs say these are commonly owned. If we don’t know whether that’s the case, then summary judgment was inappropriate.”
Wilson mentioned several mass shootings and said: “Highland Park has determined that assault weapons, given their use in such shootings, are too dangerous.”
U.S. Circuit Judge Daniel Manion, who seemed to have no inclination to favor the ban, picked up the thread: “It seems that these horrific things are not based on what weapon they used, but who was using it and why. In Chicago, for example, almost all the murders are done with pistols.”
Wilson finally found his footing: “Sandy Hook could not happen in Highland Park because he fired over 100 rounds. In Tucson, the shooter was able to get off 30 rounds before they tackled him. In Aurora, a person fired dozens of bullets in a matter of minutes.”
Later, probably trying to curry favor with Easterbrook, he added: “You can’t have a bazooka.”
The move backfired. “Why not?” Easterbrook demanded.
“They’re not commonly owned,” Wilson said.
The judge chuckled: “They’re uncommon because they’re illegal. At the time of Heller, handguns were not common in D.C.”
The lawyers also sparred over the effects of various modifications prohibited under the statute.
“What really troubles me is the barrel shroud,” Wilson said. “It allows you to hold the barrel and fire multiple shots without burning your hand.”
“These features make the gun more accurate,” Vogts said in rebuttal. “Design characteristics of a firearm to make it better cannot be turned around to make it unlawful. I’d like to address Sandy Hook. Look a little more closely. He didn’t only go in with a rifle, but with two large caliber handguns. He would have been able to do this even without an assault rifle.”
Easterbrook ended the day bemoaning the lack of a clear standard to decide the case. “We have no idea what ‘scrutiny’ means here. Any speculation about why the Justices declined to specify it?” he asked, before mentioning that the Supreme Court had declined certiorari on several such cases.
“I have no insight into their reasoning on that,” Vogts shrugged.
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