Yesterday, a three-judge panel of the United States Court of Appeals for the Seventh Circuit voted 2-1 to overturn an injunction against Illinois’ “assault weapons” ban. The panel declared that AR-15s are not protected by the Second Amendment in overturning the preliminary injunction win in Barnett v. Raoul by U.S. District Judge Stephen P. McGlynn. The case could set up a major test for gun rights for the United States Supreme Court.
Notably, the majority was composed of conservative judge Frank Easterbook and liberal judge Diane P. Wood. Conservative judge Michael P. Brennan dissented.
The majority stressed that in Heller the Supreme Court held, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” They further noted that the court has previously found that machine guns are not protected under the Second Amendment because they were not “bearable” arms under the Second Amendment.
While gun rights advocates have stressed the similarities with other clearly protected weapons, Easterbrook and Wood stressed the similarities between AR-15s and M16s:
The similarity between the AR-15 and the M16 only increases when we take into account how easy it is to modify the AR-15 by adding a “bump stock” (as the shooter in the 2017 Las Vegas event had done) or auto-sear to it, thereby making it, in essence, a fully automatic weapon. In a decision addressing a ban on bump stocks enacted by the Maryland legislature, another federal court found that bump-stock devices enable “rates of fire between 400 to 800 rounds per minute.”
In an analysis that will likely be challenged by gun rights advocates, they stressed that the guns use the same ammunition and “deliver the same kinetic energy.” The kinetic energy used in AR-15s are also analogous to clearly protected weapons.
President Biden has repeatedly made another argument on velocity that has been challenged in these comparisons. A June 30 Field & Stream column on the “Five Fastest Rifle Cartridges” listed the feet per second (fps) the five fastest rifle cartridges:
.220 Swift — A 40-Grain .220 Swift round moves approximately 4,300 fps.
.257 Weatherby Magnum — An 87-Grain .257 Weatherby Magnum round moves approximately 3,700+ fps.
.30/378 Weatherby — An 165-Grain .30/378 Weatherby round moves approximately 3,400+ fps.
.224 Clark — An 80-Grain .224 Clark round moves approximately 3,500+ fps.
.22 Eargesplitten Loudenboomer — A 50-Grain .22 Eargesplitten Loudenboomer round moves approximately 4,600 fps.
AR-15 rounds move at approximately 2,700 – 3,100 fps. Even handgun bullets can reportedly reach around 2,000 fps (though that is rare).
Even the Washington Post has called Biden’s repeated velocity claim “bungled” and factually incorrect. An AR-15 round, at 100 yards, is only slightly faster than most hunting rifles. However, when measured at the point of the departure from the barrel (as is commonly used on velocity), it is about twice the speed of a common hand gun. It is not the fastest (let alone five times faster) than other guns.
Judge Brennan’s dissent focused not on Heller but Bruen from 2022. He stressed the historical analysis used by the court and wrote that “because the banned firearms and magazines warrant constitutional protection, and the government parties have failed to meet their burden to show that their bans are part of the history and tradition of firearms regulation, preliminary injunctions are justified against enforcement of the challenged laws.”
Notably, the Supreme Court just took two new cases touching on the Second Amendment. National Rifle Association of America v. Vullo concerns free speech over companies doing business with a controversial speaker. The case involves the blacklisting of the National Rifle Association in New York.
The second case, Garland v. Cargill, considers whether a bump stock device is a “machine gun” as defined in federal law.
Here is the AR-15 decision: Seventh Circuit Opinion