Plaintiffs Shoot a Blank in Assault Weapon Ban Challenge

Steven D. Schwinn, John Marshall Law School

A divided panel of the Seventh Circuit today upheld a local ordinance banning assault weapons and large-capacity magazines against a Second Amendment challenge. The ruling in Friedman v. City of Highland Park means that the ordinance, by Highland Park, a Chicago suburb, stays in place for now. But this case is a good candidate for en banc and even Supreme Court review, so we likely haven't seen the end of it.

The case is full of turns. For example, Judge Easterbrook, for the majority, used history against the plaintiffs, even though opponents of gun regulation have so often used history in support of their points. He also used federalism against the plaintiffs, even though opponents of gun regulation so often look to "states' rights" in this and other areas. He turned the preservation or efficiency of a well regulated militia into a point about the states' ability to decide what weapons should be available to civilians. And finally he turned the gun-rights victories at the Supreme Court against the plaintiffs: If the plaintiffs can already possess handguns and long-guns for self-defense (as the Court has ruled, why do they also need semi-automatic weapons?

The case is also full of both social science and common sense. For example, "That laws similar to Highland Park's reduce the share of gun crimes involving assault weapons is established by the data." And, "But assault weapons with large-capacity magazines can fire more shots, faster, and thus can be more dangerous in the aggregate. Why else are they the weapons of choice in mass shootings?"

But aside from the turns, the social science, and the common sense, the case is notable for the Second Amendment rule it uses. Judge Easterbrook declined to apply any particular tier of scrutiny and instead applied this test:

[W]hether 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.

Judge Easterbrook essentially said that this is the best a lower court can do when the Supreme Court has declined to set a particular level of scrutiny (or other test).

As to the requirement of a reasonable relationship to the preservation or efficiency of a well regulated militia, the court said that "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." As to whether the law allows other means of self-defense, the court noted that Highland Park residents can still use handguns and long-guns for self-defense, and that the Court said that was enough.

He even at one point went so far as to say that if Highland Park's ban only "reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that's a substantial benefit."

In wrapping up, Judge Easterbrook went even more deferential:

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.

And he went more on federalism:

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.

Judge Manion dissented, arguing that the "ordinance infringes upon the rights of . . . citizens to keep weapons in their homes for the purpose of defending themselves, their families, and their property."