At this point, gun owners and other productive Americans don’t anticipate much good news out of Chicago. On November 3, the U.S. Court of Appeals for the Seventh Circuit lived up to those expectations when it upheld Illinois’ ban on commonly-owned semi-automatic firearms in Herrera v. Raoul.
In early 2023, Illinois enacted the ill-titled Protect Illinois Communities Act. That legislation, among its numerous anti-gun provisions, prohibits commonly-owned semi-automatic firearms such as the AR-15 and ammunition magazines with a capacity greater than 10 rounds. Current owners of prohibited guns are only permitted to retain their property if they register their firearms with the government. The plaintiffs in the present case challenged Illinois’ statute on Second Amendment grounds.
To some who follow Second Amendment jurisprudence, this may have seemed like an open and shut case.
In 2008, the U.S. Supreme Court ruled that the Second Amendment protects ownership of arms “in common use” for lawful purposes. In case there was any confusion about what “arms” that might entail, Heller decision author Justice Antonin Scalia cleared that up in 2015 when he signed onto a dissent from the denial of certiorari in Friedman v. Highland Park. In the dissent, Justice Clarence Thomas explained,
Roughly five million Americans own AR-style semiautomatic rifles. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.
Commonly-owned semi-automatic firearms have only become more common since Heller and the Highland Park case. In 2022, the National Shooting Sports Foundation (the firearm industry trade association) estimated that since 1990 more than 24 million modern sporting rifles (their term for commonly-owned semi-automatic rifles) have entered circulation in the U.S. A 2023 Washington Post poll found that “6 percent of Americans own an AR-15, about 1 in 20.” Given compelling research finding that polling systematically undercounts the number of gun owners in the U.S., that number may be far higher.
The standard capacity firearm magazines Illinois prohibits are not just common, but ubiquitous. Many of the most popular handguns and rifles in America are designed to use magazines with a capacity greater than 10 rounds. Americans own hundreds of millions of firearm magazines with a capacity greater than ten rounds.
If Heller weren’t enough, in 2022 the U.S. Supreme Court decided New York State Rifle & Pistol Association v. Bruen. Justice Clarence Thomas’s opinion made clear that in order for a firearm regulation to pass constitutional muster it must fit within the text, history, and tradition of the Second Amendment right. As the dissent in the present case noted, “’in common use’ is a sufficient condition for finding arms protected under the history and tradition test in Bruen.” However, for a firearm restriction to be permissible it must meet that further burden.
Specifically, the Bruen opinion explained,
[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”
Given that the concept of an “assault weapons” ban targeting semi-automatic long guns came about in the 1980s only after gun control advocates failed to ban their preferred target (handguns), such prohibitions have no place in the American tradition.
To uphold the Illinois ban, the Seventh Circuit set about contending that the AR-15 falls outside the definition of “bearable arms” discussed and protected in Heller. According to the Judge Diane Wood,
the definition of “bearable Arms” extends only to weapons in common use for a lawful purpose. That lawful purpose, as we have said several times, is at its core the right to individual self-defense.
Wood contended that firearms that are prominent in military purposes fall outside this definition and are therefore not arms covered by the Second Amendment. Wood then claimed that the AR-15, despite its solely semi-automatic function, resembles the fully-automatic military M16 sufficiently for it to also fall outside the Second Amendment’s protection.
Perhaps understanding just how flimsy this argument is, given the AR-15 and M16’s completely different fire control function, Wood then shared at length her concern about the potential that an individual may illegally modify an AR-15 to fire automatically and into something akin to the M16, and that this would also place it outside the scope of the Second Amendment.
Little space was given to explaining why the state’s standard-capacity magazine ban is permissible.
Wood’s emphasis on a firearm’s potential military application as justifying a ban is bizarre and concerning. First, the American tradition is replete with examples of the military adopting civilian firearm technology for its use and civilians adopting what was once primarily military firearm technology for lawful purposes including self-defense. Gun owners understand that what makes a firearm useful for a variety of lawful civilian purposes may also make it useful to the military, and vice versa. The military’s use of a particular type of technology shouldn’t remove that technology from Second Amendment protection.
Second, under Wood’s rubric, it’s not just the technology that the military uses that enjoys no Second Amendment protection. Firearms that resemble or are within some other undefined proximity to technology the military uses could be banned as well. How far does that proximity extend? A cynic could be forgiven for thinking it would largely depend on the technological ignorance and political proclivities of the judge and their clerks.
Also consider Wood’s contention that the purported potential to illegally modify an AR-15 into a prohibited machinegun, resembling an M16, removes it from the Second Amendment’s protection. In part of her opinion, Wood approvingly quoted a passage from Heller that states,
the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.
Any common shotgun can be modified to a short-barreled shotgun with a hacksaw. Does that mean shotguns aren’t protected by the Second Amendment because a person could modify one into a firearm that doesn’t receive Second Amendment protection (under the Court’s current case law)? Wood’s AR-15 logic invites this absurd result.
Post-Bruen, just as what happened after Heller, many federal courts are trying to stymie the obvious results of the Supreme Court’s Second Amendment decisions. A continued effort by Second Amendment advocates will be required to ensure proper enforcement of these landmark rulings.