CHICAGO (CN) — With a more guarded Reagan appointee between them, judicial appointees from the Clinton and Trump administrations posed stiff questions Thursday in a special and extra-long argument session of the Seventh Circuit on new laws in Illinois that ban assault weapons and extended ammunition magazines.
Backing the bans, Illinois Deputy Solicitor General Sarah Hunger and Cook County Assistant State's Attorney Jessica Scheller argued before the Chicago-based panel this morning that assault weapons, and assault rifles particularly, were "dangerous and unusual" firearms not designed for personal self-defense.
U.S. Circuit Judge Michael Brennan labeled the state's case against as over-broad in a historical context. While restrictions on gunpowder go back to the colonial era, the Trump-appointed Brennan said the state used alternative reasoning in approving an assault weapon ban.
"The why here is different," Brennan said, claiming that gunpowder restrictions were meant to protect firefighters, not take away a means of self-defense.
"We disagree, your honor," Scheller rebutted. "The 'why' here is to prevent mass death. ... The same why as why gunpowder was restricted by English common law."
Among the lawyers fighting the ban, Gilbert Dickey with Consovoy McCarthy referred repeatedly to assault weapons as the "linear descendants" of firearms used during the Revolutionary War, thus affording them analysis under colonial-era militia laws. Such laws required citizens to keep guns in their homes for "collective and individual defense," something Dickey argued as analogous to the motivations of present-day owners of assault weapons.
"We think at a minimum, you can't show a history of regulating a weapon that can be kept in the home and used in common defense," said Dickey, whose client, Javier Herrera, practices medicine in a Chicago-area emergency room and as a medic for a local SWAT team.
Just as Judge Brennan was critical of the state's position, U.S. Circuit Judge Diane Wood laced into arguments for the gun-right proponents.
The Clinton appointee said Dickey's argument would make sense only if the U.S. still relied on militia forces rather than a standing professional military. She also pointed out what those early militias were meant to defend against: Black slave uprisings and indigenous resistance to white U.S. settler encroachment.
"In 1791 you think that they were arming other races or the indigenous folks here?" Wood asked.
Wood was openly sympathetic meanwhile to the state's arguments.
"If somebody buys their AR-15 and says, 'I expect to use this for self-defense,' is that enough to say it is for self-defense?" Wood asked Hunger.
No, Hunger answered, instead comparing assault rifles to other military weapons such as rocket launchers, hand grenades and machine guns "designed for the battlefield" and historically restricted from civilian use in the U.S.
"They're the perfect weapon for lone shooters ... to murder masses of people in minutes, if not seconds," Hunger said, as Wood nodded along.
U.S. Circuit Judge Frank Easterbrook seemed to sit between Wood and Brennan in his ideological leanings on the issue. But while he criticized both sides' arguments, he grew especially frustrated at the attempts by Erin Murphy, representing the National Shooting Sports Foundation, to distinguish the new Illinois ban from past gun regulations, particularly restrictions on machine guns, which have an infamous connection to Chicago's history of organized crime.
Such restrictions were first implemented by the 1934 National Firearms Act and then expanded by the 1986 Firearm Owners’ Protection Act, and Easterbrook pressed Murphy over why she wasn't also challenging the constitutionality of these laws.
"You're just fixed on saying machine guns can be banned, but something that's yea far from a machine gun can't be banned," Easterbrook said.
Murphy responded that machine guns were banned specifically because of their connection to organized crime; that they were never as commonly owned by everyday citizens as assault weapons are today. By contrast, Murphy claimed assault weapons are common enough in 2023 to deflate the state's position that they are "dangerous and unusual" guns.
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