In a major victory for gun rights advocates, U.S. District Judge Stephen McGlynn has granted a preliminary injunction of Illinois’ ban on assault weapons and large capacity magazines. The decision comes after two other district courts ruled in favor of the law — sending this issue to the United States Court of Appeals for the Seventh Circuit and potentially the Supreme Court. These long-awaited challenges will test the Democratic calls for removing all AR-15s and similar weapons, including calls from President Joe Biden.
I have previously raised doubts over some of these laws, which are based on questionable factual claims and distinctions between weapons. Indeed, President Biden has made dubious constitutional and historical claims about the Second Amendment and AR-15s.
Illinois and New York have previously supplied gun rights advocates with huge victories by drafting facially unconstitutional laws. Moderate efforts at gun control are often ramped up in the legislative process to become more and more sweeping.
McGlynn recognized that gun bans are popular in states like Illinois but noted that “even legislation that may enjoy the support of a majority of its citizens must fail if it violates the constitutional rights of fellow citizens.”
The court tackles the argument made by many gun control advocates that states can ban “non-essential accessories” like magazines because they are not themselves “arms” under the Second Amendment.
PICA outlaws possession of a “semiautomatic pistol” with a detachable magazine if it is equipped with any of the following: “a threaded barrel,” “a shroud attached to the barrel or that partially or completely encircles the barrel,” “a flash suppressor,” or “arm brace.” PICA further outlaws possession of a magazine for a handgun capable of holding more than 15 rounds of ammunition and of “[a] semiautomatic pistol that has a fixed magazine with the capacity to accept more than 15 rounds.” Defendants contend that such items are not necessary to the functioning of a firearm and are thus not “arms” and therefore not protected by the Second Amendment.
Defendants’ argument is not persuasive. The Seventh Circuit has recognized the Second Amendment as extending to “corollar[ies] to the meaningful exercise of the core right to possess firearms for self-defense.” It is hard to imagine something more closely correlated to the right to use a firearm in self-defense than the ability to effectively load ammunition into the firearm. The Third Circuit recognized the importance of this corollary and held that “a magazine is an arm under the Second Amendment.”
McGlynn also stated that it is “bordering on the frivolous” to claim that neither large capacity magazines nor assault weapons are protected because they were not in common use when the Second Amendment was ratified. He cited the long-standing rule that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
The court also rejected the claim that the standard is whether a weapon was in common use for self-defense:
Bruen clearly holds that the Second Amendment protects “possession and use” of weapons “in common use” not just weapons in common use for self-defense as Defendants’ argued. Even if there was a requirement that the “common use” of an “arm” be self-defense, AR-15 style rifles would meet such a test considering that 34.6% of owners utilize these rifles for self-defense outside of their home and 61.9% utilize them for self-defense at home.
The court further noted that large capacity magazines are commonly owned and used by sporting enthusiasts and there are more AR-15s than F150s in this country.
Judge McGlynn also noted that these weapons are commonly used for self-defense and that there are up to 2.5 million instances each year in which civilians used firearms for home defense. He added:
“In no way does this Court minimize the damage caused when a firearm is used for an unlawful purpose; however, this Court must be mindful of the rights guaranteed by the Constitution. While PICA was purportedly enacted in response to the Highland Park shooting, it does not appear that the legislature considered an individual’s right under the Second Amendment nor Supreme Court precedent. Moreover, PICA did not just regulate the rights of the people to defend themselves; it restricted that right, and in some cases, completely obliterated that right by criminalizing the purchase and the sale of more than 190 “arms.” Furthermore, on January 1, 2024, the right to mere possession of these items will be further limited and restricted Accordingly, the balance of harms favors the Plaintiffs.
The Court recognizes that the issues with which it is confronted are highly contentious and provoke strong emotions. Again, the Court’s ruling today is not a final resolution of the merits of the cases. Nothing in this order prevents the State from confronting firearm-related violence. There is a wide array of civil and criminal laws that permit the commitment and prosecution of those who use or may use firearms to commit crimes. Law enforcement and prosecutors should take their obligations to enforce these laws seriously. Families and the public at large should report concerning behavior. Judges should exercise their prudent judgment in committing individuals that pose a threat to the public and imposing sentences that punish, not just lightly inconvenience, those guilty of firearm-related crimes.”
Here is the opinion: 2023-04-28-Order-Granting-MPI
(TLB) published this article from Jonathan Turley with our appreciation for this perspective
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.
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