A federal judge in Illinois recently issued a permanent injunction against that state's "assault weapon" ban, deeming it inconsistent with the Second Amendment. The Protect Illinois Communities Act (PICA) "is an unconstitutional affront to the Second Amendment and must be enjoined," U.S. District Judge Stephen P. McGlynn wrote in Barnett v. Raoul, which combines several challenges to the law, on Friday. "The Government may not deprive law-abiding citizens of their guaranteed right to self-defense as a means of offense."
McGlynn imposed a 30-day stay on his injunction to allow an appeal that seems likely to succeed. Last year in Bevis v. City of Naperville, the U.S. Court of Appeals for the 7th Circuit vacated a preliminary injunction against PICA that McGlynn issued in April 2023. The 7th Circuit concluded that the state was likely to prevail in its defense of the law.
The 168-page opinion that McGlynn issued on Friday, which followed a bench trial, aims to reconcile the 7th Circuit's reasoning, which was based on a distinction between "military" weapons and "Arms protected by the Second Amendment," with the U.S. Supreme Court's Second Amendment precedents. That's a tall order. But the Firearms Policy Coalition (FPC), which represents the plaintiffs in one of the PICA lawsuits, argues that the evidence presented at trial showed that "PICA fails even under the Seventh Circuit's misguided test," which it says "conflicts with binding Supreme Court precedent."
Illinois legislators enacted PICA in January 2023, six months after a gunman used a Smith & Wesson M&P15 rifle to kill seven people at an Independence Day parade in Highland Park. Among other things, the law bans a long list of specific rifle models, along with any semi-automatic rifle that accepts detachable magazines and has one or more of six listed features: a pistol grip or thumbhole stock, a protruding grip, a folding or adjustable stock, a flash suppressor, a grenade launcher, or a barrel shroud. PICA also bans "large capacity ammunition feeding devices," defined to include rifle magazines that hold more than 10 rounds and pistol magazines that hold more than 15 rounds.
Illinois House Speaker Chris Welch (D–Westchester) said the law was aimed at "weapons of war." That phrase suggested that Welch was talking about selective-fire rifles like those carried by U.S. soldiers, which can shoot automatically.
That was clearly not true. Such rifles are strictly regulated under federal law, which has forbidden sales of newly manufactured machine guns to civilians since 1986. PICA does not deal with machine guns; it deals with semi-automatic firearms, which fire one round per trigger pull.
Illinois Senate President Don Harmon (D–Oak Park) said PICA "begins the pushback against weapons whose only intent is to eviscerate other human beings." Since firearms are inanimate objects that cannot form an intent, and since only a tiny percentage of the guns banned by PICA are ever used to commit crimes, that remark was puzzling. But it reflected the difficulty that legislators face when they try to ban guns that supposedly are good for nothing but mass murder.
Such rhetoric, in any event, has no constitutional significance. In the landmark 2008 case District of Columbia v. Heller, the Supreme Court upheld the Second Amendment right to keep handguns for self-defense, even though such firearms are used in crimes (including mass shootings) much more often than the rifles that Illinois banned.
"We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution," Justice Antonin Scalia wrote in the majority opinion. "The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns….But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home."
Beginning in Heller, however, the Supreme Court has drawn a distinction between arms "in common use" for "lawful purposes like self-defense," which are covered by the Second Amendment, and "dangerous and unusual weapons," which are not. McGlynn's opinion aims to elucidate that distinction without contradicting what the 7th Circuit has said on the subject.
In Heller, the Court held 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." McGlynn defines "bearable" arms as weapons that "an individual carries for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person."
What makes a weapon "dangerous"? Since all guns can be used to injure or kill people, the answer is not obvious. After much consideration, McGlynn defines "dangerous" weapons as "arms that a typical operator cannot reasonably control to neutralize discrete, identified aggressors." Machine guns, he reasons, fall into that category because soldiers use them for "suppressing fire," as opposed to targeting a specific threat. McGlynn emphasizes that "it is the lack of the ability to discriminately control the arm and its discharged projectiles that makes it dangerous, not its rate of fire."
What about "unusual"? Illinois argued that a weapon can be "unusual" even if it is widely owned, as the guns covered by PICA indisputably are. Without reference to that question, McGlynn defines an "unusual" weapon as "an arm deploying an atypical method to neutralize an opponent in confrontation or that deploys a neutralizing agent that is caustic, incendiary, noxious, poisonous, or radioactive." He adds that the "unusual" category "would also include those weapons that are not designed for successful self-defense in neutralizing an opponent, but rather are primarily deployed to inflict cruel, brutal, or inhumane suffering on a person."
What does it mean for a weapon to be "in common use"? The 7th Circuit has said that numbers alone are not decisive: Even though millions of Americans own "assault weapons," that fact alone does not show these firearms are "in common use." Taking a somewhat different tack, McGlynn says the "common use" category presumptively includes "any bearable rifle, shotgun, or pistol that is capable of semiautomatic fire and is or has been available for purchase, possession, and usage by law-abiding citizens for self-defense, provided that it is not otherwise 'dangerous and unusual.'" That "common use" category, he adds, also includes "essential features (like magazines) and nonessential features that increase operability, accuracy, or safety (like the various attachments prohibited by PICA)."
McGlynn also considers the military/nonmilitary distinction drawn by the 7th Circuit. He emphasizes that the rifles covered by the Illinois ban are not actually used by the military and are not capable of automatic fire. He also notes that the 7th Circuit recognized a "dual use" category of guns that are used by civilians as well as soldiers, with pistols being the prime example. Although soldiers carry handguns, which the Supreme Court in Heller described as "the quintessential self-defense weapon," it nevertheless held that they qualify as "arms" under the Second Amendment.
Having determined that the rifles banned in Illinois are indeed "arms," McGlynn considers whether PICA passes the constitutional test that the Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen: Is the law "consistent with this Nation's historical tradition of firearm regulation"? McGlynn concludes that the historical analogs cited by Illinois are not "relevantly similar" to PICA.
In making that determination, the Supreme Court said in Bruen, judges should consider both the "why" (the motivation for a statute) and the "how" (the nature of the restrictions it imposes). McGlynn says PICA fails based on the latter prong. He notes that "only 4% (9 out of 225) of the cited statutes entirely restricted the sale and/or possession of entire classes of weapons." The government "relies predominantly and overwhelmingly on concealed carry statutes, statutes restricting the discharge of firearms, and statutes proscribing brandishing or causing terror," he writes.
Although "these statutes may answer the 'why' question in Bruen because they were
clearly [aimed at] preventing death or injury from firearms," McGlynn says, "they cannot answer the 'how' question. Moreover, the Government clearly cannot demonstrate that PICA follows any historical tradition of sweeping prohibitions on the sale, transfer, and possession of vast swaths of firearms."
McGlynn's injunction covers both the prohibition of "assault weapons" and the registration requirement for previously owned guns. It also covers the ban on "large capacity" magazines, although McGlynn says "belt-fed munitions," because they "have no lawful self-defense purpose," can be banned without violating the Second Amendment. And while most of the rifle features banned by PICA are constitutionally protected, he says, that is not true of grenade launchers, because "no one uses them for self-defense."
McGlynn likewise concludes that PICA's ban on .50-caliber rifles is constitutional. "This Court is not convinced that any law-abiding citizen would keep a .50 caliber sniper rifle at home for self-defense purposes," he writes. "The Government's testimony indicates that it is large, cumbersome, has significant recoil, and has limited use in close-quarters situations. Such a weapon is clearly unsuited for self-defense and is properly banned for civilian use by PICA. The same is true for the ammunition it fires."
McGlynn says neither side presented enough evidence for him to assess the constitutionality of PICA's ban on devices that increase a rifle's rate of fire. "No evidence has been presented indicating that bump stocks, binary triggers, or similar devices result in the operator being unable to control the weapon to which they are attached" (which would make them "dangerous" under McGlynn's definition), he writes. "Unlike the language in PICA prohibiting certain semiautomatic rifles, pistols, and shotguns as well as magazines and attachments, the language regarding devices that increase rate of fire is vague….Because this Court lacks data or argument regarding their prevalence or usage, this Court cannot determine whether or not such devices are in common use for self-defense."
The 7th Circuit's prior rulings suggest that it won't be receptive to McGlynn's analysis. But as the FPC notes, a challenge to Maryland's "assault weapon" ban gives the Supreme Court an opportunity to decide whether such laws are constitutional. "We are optimistic that the Supreme Court will soon address bans like these in our Snope v. Brown case out of Maryland, which is pending the Court's decision on our petition for certiorari," says FPC President Brandon Combs. "Gun owners across the United States should be confident that the ultimate victory on these issues is coming, likely soon."
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