Appeals Court places feelings over Constitution

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, based in Chicago, has upheld a lower court ruling that an Illinois community’s ordinance banning possession of “assault weapons,” and “high-capacity” magazines is not a violation of the Second Amendment rights of their citizens. In the two to one decision, the prevailing judges concluded that “If a ban on semi‐automatic guns and large‐capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.”

They stated this outrageous conclusion right after admitting that the “perception” of risk was exaggerated and that the actual risk is extremely low. (After all, so-called “assault weapons” are involved in something less than 2% of violent assaults and murders.) In order to reach their conclusion, the judges had to completely dismiss the perceived risks and concerns of the plaintiffs, who choose to have the capability to defend themselves and their families in the event of criminal assault by multiple assailants. While this too is a low-probability scenario, many people in Baltimore might say it is much more likely than the stated rationale for banning the guns and magazines which was concerns about a Sandy Hook-style mass murder.

Under the prevailing judges’ rationale of “perceived risk” and making the public “feel safer,” would it be acceptable for a city to ban African-Americans from their community if doing so would make the public “feel safer?” Could they ban Mosques based on a “perceived risk” of Islamist terrorism? Could the city mandate filtering of all Internet services in the community based on a “perceived risk” that availability of pornography could incite the libidos of male residents, leading to increases in rape, if that made female citizens “feel safer?”

The case was brought by a group of residents of the City of Highland Park, Illinois after the city adopted an ordinance banning the manufacture, sale, purchase, or possession of any semi-automatic firearm capable of accepting a “high-capacity” magazine, and including any one of the now-familiar “evil features:”

1. A pistol grip with no shoulder stock (and for pistols, a magazine well not located within the pistol grip).

2. A folding, telescoping, or thumbhole stock.

3. A grip for the non-trigger hand (we assume this to mean a vertical or angled grip, as opposed to the normal, horizontal grip surface of the forend of a traditional stock).

4. A “barrel shroud.” (The notorious “shoulder thingy…”)

5. A muzzle break or compensator. (Effectively banning expensive competition pistols.)

The ordinance also specifically prohibits AR and AK-style firearms and any ammunition feeding device capable of carrying more than 10 rounds.

The lead plaintiff, Arie Friedman, owns an AR15-style rifle and a number of standard, 30-round magazines. Mr. Friedman wishes to keep the rifle and magazines in his home for protection of himself and his family, and to take to the range to maintain proficiency in their use, but under the ordinance, he would be required to remove those items from the city or forfeit them to the local police. Mr. Friedman and the Illinois State Rifle Association, filed suit in Federal Court contending that the ordinance violates Second Amendment protections of their right to keep and bear arms.

In the initial suit, Judge John Darrah, a Chicago native who was appointed to the federal bench by President Bill Clinton in 2000, ruled that the Highland Park ordinance did not violate the petitioners’ constitutional rights. Friedman and ISRA appealed the decision to the Seventh Circuit Court of Appeals where the case was heard this past January. On April 27, the court released its ruling, affirming the decision of the lower court and upholding the city’s gun and magazine ban.

In the Court of Appeals the case was heard by Judges Frank Easterbrook, Ann Williams, and Daniel Manion. Easterbrook, who penned the decision, has a reputation for clear writing and a legalist approach to the law, but he clearly demonstrated in this opinion that, either his reputation is distorted, or he had a seriously off day. In the opinion, Easterbrook frequently made reference to the Second Amendment “conferring” rights, and several times constructed logical arguments which he then resolved with illogical conclusions. His final conclusion, that laws making the public “feel safer” constitute a “substantial benefit” – outweighing any real or perceived benefit of the constitutionally protected right to arms – should go down in history as one of the most wrong-headed conclusions ever reached by an appellate court judge.

In his dissent, Judge Manion eviscerated Easterbrooks arguments, pointing out that the Supreme Court has repeatedly recognized that the Second Amendment does not “confer” rights, but rather protects the preexisting, fundamental right to arms as an extension of the natural rights of self-defense and self-determination. He logically steps through the applicable precedents and holdings, and the appropriate process for evaluating a case of this nature.

Now the case could be appealed to the Supreme Court, where the Justices have the discretion to either hear it, or let the ruling stand. Before that, it could go to an en banc hearing of the full Seventh Circuit, which could reverse the panel. The Seventh Circuit has a reputation for being “conservative,” but with the rampant elitism and nanny mentality of many judges, a case like this could always go either way.

Since their decision in McDonald, the Supreme Court has returned to their tradition of avoiding Second Amendment cases, so it’s impossible to guess whether they would take up this one or not.

Meanwhile, law-abiding residents of Highland Park, Illinois have fewer rights than the people of the rest of the country. That’s just not right.

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