Constitutional Law, Courts

The Seventh Circuit Rules for Illinois AR-15 Assault Ban

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:

  1. .220 Swift — A 40-Grain .220 Swift round moves approximately 4,300 fps.

  2. .257 Weatherby Magnum — An 87-Grain .257 Weatherby Magnum round moves approximately 3,700+ fps.

  3. .30/378 Weatherby — An 165-Grain .30/378 Weatherby round moves approximately 3,400+ fps.

  4. .224 Clark — An 80-Grain .224 Clark round moves approximately 3,500+ fps.

  5. .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

 

196 thoughts on “The Seventh Circuit Rules for Illinois AR-15 Assault Ban”

  1. “Fall back!”
    That’s a military command, but means something else tonight…

  2. Prof. Turley is wrong. Easterbrook is no conservative. Easterbrook is, in fact, a classic Leftist, doing all the things that deceitful Leftists do.

    “When respected law professor Albert Alschuler said renowned federal appeals court judge Frank Easterbrook engaged in “eight whoppers” in a high-profile case, Injustice Watch undertook a review of the judge’s other cases. The result: A pattern of misrepresenting facts: Misstatements, omissions and wrong assumptions.”

    See https://www.injusticewatch.org/projects/2017/pattern-of-misstated-facts-found-in-probe-of-renowned-federal-judges-opinions/

  3. Preposterous!

    For those of you in Rio Linda, the AR-15 is NOT an assault rifle; it is, rather, an Armalite Rifle.

    The arms referenced in the 2nd Amendment are those necessary to establish the security of a free State against contemporary, “state of the art” arms and those sufficient to oppose the forces of a tyrannical and oppressive government, foreign or domestic, licit and illicit.

    The right to keep and bear the arms referenced in the 2nd Amendment SHALL NOT BE INFRINGED or violated.

    The concurring judges must be immediately impeached and convicted for high crimes, including maliciously attempting to illicitly amend the Constitution, abuse of power, usurpation of power, corruption, subversion, insurrection, treason, et al., with extreme prejudice.

    Any member of Congress or the Senate who refuses to impeach and convict those anti-American, unconstitutional judges must himself be impeached and convicted for subversion, nullification, voidance, insurrection, and treason.

    That some do not appreciate the 2nd Amendment does not bear.

    Americans are not asking anyone for the absolute right to keep and bear arms; they already enjoy it.
    ____________________________________________________________________________________________________________

    2nd Amendment

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
    ______________________________________________________________________________________________________________________________________________________

    Merriam-Webster

    infringe
    verb
    in·​fringe in-ˈfrinj
    infringed; infringing

    transitive verb
    1: to encroach upon in a way that violates law or the rights of another
    infringe a patent
    2 obsolete : defeat, frustrate

    intransitive verb
    : encroach—used with on or upon
    infringe on our rights

  4. The Swiss men of military age keep their issued weapons at home but the ammunition is kept in the armory.

    1. The violent criminals protected by George Soros DAs aren’t Swiss men of military age.

    2. Are you in Switzerland?

      You seem so confused.

      Can you read the Constitution?

      Can you read the 2nd Amendment?

      Do you understand that the Constitution and the 2nd Amendment comprise American fundamental law?

      Do you imagine that in a society of laws, the laws must be obeyed until such time as they are amended or abrogated?

      No, no, no! You are above the law, aren’t you, Oh Exalted One?

    3. It seems that II have to do all thinking. I leave the emoting to others.
      As I read it, the constitution states nothing about ammunition.

      1. You sound like a mindless Leftist. Mindless Leftists cannot think. They can only regurgitate Leftist talking points. That’s what you’re doing.

        The Second Amendment uses the term “arms.” The writers of the Second Amendment deliberately chose that term to describe weaponry in the broadest terms possible, so that any kind of arms, including ammunition.

        Similarly, the Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” A mindless Leftist would argue that the Fourth Amendment doesn’t prohibit the government from breaking into your computer or smart phone because the Fouth Amendment makes no reference to computers or smart phone. But that’s why the writers of the Fourth Amendment chose to use the term “effects.” The word “effects” anticipated any means of maintaining any form of information, even “effects” not yet in existence.

        Leftists are antithetical to the US Constitution. They hate it and want to destroy it, piece by piece from within, if not by revolution. They seek to replace it with an Autocratic, Authoritarian Governmennt where freedom and liberty are only enjoyed by the Elite.

      2. . . . the constitution states nothing about ammunition.

        That kind of silliness I did not expect.

        1. I don’t claim to understand law.
          But as I now have read more I suppose that ‘arms’ included shot and powder…

      3. That would be akin to saying the Freedom of the Press section of the 1st made no mention of ink.

        1. Perfect!

          You cannot have freedom of the press because that pesky Constitution made no reference to ink.

          I say deport Constitution deniers, knee takers, etc.

    5. “. . . but the ammunition is . . .”

      For some, but not for others. And that separation requirement does *not* apply to citizens.

      More broadly, you don’t want to use Switzerland as an example. It is a “shall-issue” country, with some of the most liberal gun laws in the world, and a very high rate of gun ownership (with a very low rate of mass shootings).

      Switzerland illustrates the fact that mass shootings are not caused by guns. They are caused by an individual’s bad choices and irrational values.

  5. The kinetic energy delivered to a target is proportional to the mass (grains) times the *square* of the speed (fps).

    1. Sloppy work there, Cal Tech graduate. Tsk, tsk.

      Bullet trajectories are affected by important factors such as air resistance, angle, air pressure and temperature, muzzle velocity, bullet shape and drag coefficient. For example, a violent criminal protected by a George Soros DA would have to aim the gun at 0.436 degrees to hit the center of a target 1 meter off the ground and 1000 meters away with an air temperature of 27.2 degree Celsius. Type of ammo is important since a hollow point bullet shot at the target in the same conditions would have more drag and require a different launch angle to hit the center of the target.

      Show your work Benson.

      1. Estovir, don’t be more of a fool than you have to. I stated nothing about *trajectory*, just the delivered kinetic energy. Consult any introductory physics textbook.

        1. Consult any introductory physics textbook.

          Alas, end of chapter ballistics problems in intro physics textbooks instruct students to ignore resistance, coefficients of friction, temperature, muzzle velocity, drag, material, etc. so that students can solve them. If they were to account for the other dynamic properties, they would be too difficult to solve. Reality does not account for such stupidity. Ballistics encompasses dynamic principles of physics whereas you live in a world of stick people, statics and cartoons.

          I don’t claim to understand law.

          Yet you continually express your erroneous views on this legal blog, e.g. “climate science”

          1. Estovir, ballistics is far more than the delivered kinetic energy. You are hyper-ventilating.
            As for climatology, that s a science, not a body of law. You are seriously confused, it seems.

        2. Resident CalTech PhD™ fool states

          The kinetic energy delivered to a target is proportional to the mass (grains) times the *square* of the speed (fps).

          I have found the solution to your problem, Benson. CalTech did not know the correct equation for KE or, in your hubris, you refused to follow the science™. The correct formula for KE, as any freshman college science student knows is:

          Kinetic Energy = (0.5)(mass)(velocity)²

          Knowing correct formulas is important when discussing the sciences

          You are welcome, fool.

          1. Estovir the fool, the *correct* formula for kinetic energy is precisely what I wrote. The constant of proportionality (0.5) only applies to consistent units which grains and fps are not.

            1. Unless you choose to use units of gains times fps squared as the unit of kinetic energy. I din’t know anybody who does, tho’.

              1. The kinetic energy delivered to a target is proportional to the mass (grains) times the *square* of the speed (fps).

                Speed is not velocity
                Speed = scalar quantity
                Velocity = vector quantity
                Ballistics = vectors
                Units = Metrics. Always.
                Mass = kg
                Vel = m/s

                Talk to your doctor about dropping the dose of your anti-psychotic meds (Haldol?). You may be experiencing extrapyramidal symptoms.

                No need to reimburse me for my physician services. I do charity cases all the time

                Hope that helps 🖕🏾

                😉

                1. Estovir, one doesn’t *square* a vector quantity. The vector, velocity, has a size, the scalar *speed*, and a direction. One squares the scalar in determining the kinetic energy. Unfortunately the introductory physics texts do not make this sufficiently clear, it seems.
                  As for units, one can always convert. The speed limits for automobiles and trucks are rarely posted in meters per second, so the *speed* isn’t always in m/s. The direction component of the velocity is down the highway —- anyway I hope so or else you’ll have a accident while you are self-medicating.

      2. Estovir,
        I have been reloading my own, to include advance techniques, i.e. reducing bullet jump, for over 20 years.
        You just owned Benson!

        1. Farmer Up There,I hope you can farm better than your understanding of physics implies. Estovir hardly knows what he is about.

          1. Yet Estovir demonstrated he knows exactly what he is talking about with his November 4, 2023 at 9:39 PM
            comment, does the math and shows his work.

        2. 😅

          I happily am over 3000 miles from Benson. Owning him would require a rubber room given his psychotic rants, effortless yet incoherent gibberish aka fluent aphasia

          1. Estovir, sorry that you never actually learned physics nor climatology for that matter.
            I’d attempt to write down to 3rd grade level for you but I doubt that it would stick.

            1. David – One cannot sit for the MCATs, let alone succeed in med school, without having college-level knowledge physics.

              1. Kansas Elder — Nether of my two children who are practicing M.D.s took college level physics for their liberal arts degrees.
                Estovir demonstrates his lack of understanding of college-level physics and suppose he has an M.D.

                1. There is a reason why your wife divorced you.

                  Not having successful interpersonal relationships is pathognomic for being a failure at life.

                  1. Then Estovir, your continued attacks at me must demonstrate that you are a “failure at life”.

  6. Judge Easterbrook has an interesting history. He wrote the opinion in 2009 that stated the 2nd amendment did not apply to the states, allowing Chicago to ban handguns, but this was subsequently overturned and in 2015 he ruled that the city of Highland Park could ban “Assault Rifles” and this was also overturned. It appears that his footprints are all over this new decision and shows his blatant disregard of Supreme Court precedent. This is being obtuse and disrespectful of the Supreme Court and obviously seems to place his opinions, twice overruled, as being above reproach. He also has been an Appeals Court Judge since 1985 and apparently never seriously considered for the Supreme Court. Too bad that if a judge is overruled 3 times (as I suspect he will be overruled again) on the same subject, he should be required to retire. You know 3 Strikes and You’re Out.
    Also this concern about bullet speed kind of misses the point. Getting struck by a 5.56 round of an AR 15 or a 55-70 caliber from a smooth bore musket or rifled musket is no picnic is either case. Both will kill you and cause fractured bones and massive tissue loss. Same with a semiautomatic M1 Garand (legal) firing a 30-06 round or 7.62X63. Also the M1 Only needs a little nub on the receiver to be filed off to become an automatic weapon. Learned that little trick in Jr ROTC in High School back in the 1960’s. Taught to us by our military adviser and since we all used M1’s without firing pins in our battalion, we all knew how to produce a “machine gun”.
    Also more people are stabbed to death or beaten to death each year than killed by rifles.

  7. The 2A expressly mentions the necessity of a militia as grounds for prohibiting infringement of arms ownership by the people. Therefore, the 2A expressly protects military weaponry. By claiming the AR-15 is comparable to “military grade weaponry,” the 7th Circuit inadvertently provides the reason why civilian ownership of the AR-15 is protected.

    1. Oh, TK, why do you express a logical, consistent, and supported legal argument?

      That’s not what the Seventh Circus is about. They have a political agenda to pursue to disarm Americans and to steal their freedom and liberty in violation of law. And they hate logic and consistent application of the law. Those things get in the way of their agenda.

    2. That’s not how Bruen works. If there is a history and tradition of regulating a type of weapon, the regulation is permissible regardless of whether that type is a weapon of war.

      The dissent appears to have a better reading of Bruen here. It seems absurd to argue, as the majority does, that assault rifles and their magazines are not “arms” and therefore are not prima facie covered by the 2A.

    3. Therefore, the 2A expressly protects military weaponry. By claiming the AR-15 is comparable to “military grade weaponry,” the 7th Circuit inadvertently provides the reason why civilian ownership of the AR-15 is protected.

      That was the reasoning of the Miller ruling.
      Guns in common use, readily available, that would be appropriate for military use. Those could not be regulated
      AR15 style platform is THE most popular weapon in the US. Again meeting the standard as defined in Miller
      Miller simultaneously ruled a sawed off shot gun had no military utility. (todays urban fighting would contradict Miller)

      1. Miller did not rule that a sawn-off shotgun has no military utility. It said that there was no evidence in the record on whether it had such utility, so it couldn’t say whether it was protected. It remanded the matter back to the trial court to make factual findings, and to rule on Miller’s case accordingly. That hearing never took place, because Miller was dead so the case was moot.

    4. the militia clause is subordinate to the “right to keep and bear arms” clause. It can not stand on its own
      “Let’s begin by noting that the amendment’s second clause can be preceded by any subordinate clause of your imagination without altering its meaning. To wit: “A high net worth being necessary to date a supermodel…” “It being necessary to keep your friends close but your enemies closer…””
      https://legalinsurrection.com/2012/12/it-being-necessary-to-cut-through-the-blather-about-the-second-amendment-before-we-lose-our-rights/

      1. Correct. The militia clause is not operative, it only gives motivation, kind of like legislative findings as the motivation for the enactment. But the substantive provisions of the enactment are operative.

        The operative clause is “the right of the people to keep and bear Arms, shall not be infringed.” It guarantees the rights of “the people,” not the military or a militia.

        1. “The people” at the time it was written also meant the state. Not individuals. Only stayed at at the time could create militias. The first part, “ A well regulated militia was in reference to state militias. Because at the time there was no standing army. The second part was referring to states, their respective governments the people. Not individuals. The amendment was to ensure the federal government at the time wouldn’t infringe on a state’s right to bear arms. It was a necessity for slave owning states to keep militiamen to prevent slave revolts which were becoming a problem.

          1. . Only stayed at at the time could create militias.

            The militia is defined, as all able bodied men. Today if you are healthy and able, between the ages of 18 and 50 you are a militia.
            It is impossible to read the 2cnd and not understand, its stated purpose is to protect the power of the people to protect themselves from all hostiles. foreign and domestic .

            In short, to protect the people from their government. The people are sovereign. Something unknown in all past governing structures.

          2. Can you explain to me how people accustomed to firearms were supposed to feed themselves in the late-1700s? Please tell us of the VT agricultural scene in February 1782.

            To suggest that anyone was keeping arms from the people for all reasons except forming a militia is simply a lie, there is no other way to say it. No one has been neutered by suburbia to the extent they would believe otherwise, have they?

          3. “Not individuals.”

            That is anti-historical nonsense.

            The *entire* Constitution was written to protect *individual* rights (the Bill of Rights, expressly so).

          4. Wait, “the people” means the state? Where do you get that? One thing basically means it’s opposite? I call BS on that.

            The Fourth amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Does that mean the state governments are secure in their persons, houses, papers and effects?

            Complete and utter BS.

          5. “The second part was referring to states, their respective governments the people. Not individuals“

            Time to start from scratch and learn history. Start with the Constitution, We the People.

  9. From the 7th Circuit opinion:

    Government may punish a deliberately false fire alarm; it may condition free assembly on the issuance of a permit; it may require voters to present a valid identification card; and it may punish child abuse even if it is done in the name of religion. The right enshrined in the Second Amendment is no different

    deliberately false fire alarm

    unless if you’re a Leftist Democrat Congresscritter, you can pull a false fire alarm, lie about it, then cop a plea

    may require voters to present a valid identification card

    Who is going to tell Joe “Jim Crow on steroids” Biden?

    and it may punish child abuse even if it is done in the name of religion

    And yet when the Leftist Church of Woke castrates boys and performs mastectomies on little girls, Democrats defend it to the death

    The Court’s conclusion is based on a false premise:

    The State of Illinois, in the legislation that lies at the heart of these cases, has decided to regulate assault weapons and high-capacity magazines—a decision that is valid only if the regulated weapons lie on the military side of that line and thus are not within the class of Arms protected by the Second Amendment.

    Handguns can not protect families and households from throngs of BLM ANTIFA Terrorists descending on highways and cities, torching residences and businesses and unleashing violence in streets and neighborhoods. AR-15 rifles and others can protect families and households, however, especially when Democrats have defunded the “military side of the line”.

    Fearful Americans, Hispanics, blacks and Jews have purchased said weapons in record numbers because the government can not, will not, defend them. We refuse to be trophies for BLM ANTIFA terrorists

    Some people may think that “assault weapons” means automatic weapons. But automatic weapons were banned decades ago. Banning ugly-looking “assault weapons” may have aesthetic benefits, but it does not reduce the dangers to human life in the slightest. You are just as dead when killed by a very plain-looking gun.
    One of the dangerous inconsistencies of many, if not most, gun-control crusaders is that those who are most zealous to get guns out of the hands of law-abiding citizens are often not nearly as concerned about keeping violent criminals behind bars.

    – Professor Thomas Sowell

    https://www.dispatch.com/story/opinion/cartoons/2013/04/16/thomas-sowell-commentary-gun-laws/24194328007/

    1. The references to completely unrelated areas of law seem pretty juvenile. This case has noting at all to do with fire alarms, child abuse, or voting procedures. That kind of language only elicits eye-rolls from people hoping for well reasoned judicial decision-making.

  10. I wonder where the AK-47, M-14, or even the venerable M-1, stand? And what about the AK-47?

    True, neither the M-14 nor the M-1 can be made fully automatic (though if memory serves the early M-14s did have a selector switch. I don’t know if anyone has invented a bump stock for an AK).

    But the M-14, shoots the NATO 7.62 x 51 mm round (essentially a .308 Win. cartridge, a very common deer cartridge) that is far more powerful (energy at range) than the AR’s 5.56 round. The M-1 round, which is a standard .30-06, is more powerful than the .308.

    The M-14 uses a 20 round mag, which was easily dropped when empty and replaced with a full mag. The M-1 uses 8 round clips that were automaticlly ejected when the 8th round was fired and replacing the clip with a fully charged one took only seconds.

    Then, there is the AK-47 (7.62 x 39 mm). In terms of energy, it is somewhere between a 5.56 and a 7.62 x 51 NATO round. In terms of penetration, it is superior to the 5.56 NATO.

    The AK is also fed by a detatchable magazine that hold 10, 20, 30 or 40 rounds (depending on preference) that, like the M-14’s magazine, can be replaced in seconds with a fully-charged one.

    I’ll spare anyone who has read this far from discussing the British SMLE and the “Mad Minute” training competition. https://en.wikipedia.org/wiki/Mad_minute

  11. Simply Politics. The DEMS/Biden will not give up. Grasping for Straws. Supreme Court to rule and the DEMS and the Left will not like it.

  13. “With a 7th Circuit panel hilariously claiming a firearm isn’t protected by the Second Amendment if the military uses it, now is a great time to once again plug my forthcoming law review article discussing why bearable arms that are so-called “weapons of war” are what the Second Amendment protects most of all. The dozens of historical citations here are completely irreconcilable with the 7th Circuit ruling”.
    Kostas Moros
    https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4568820

  15. Parsing differences in the speed of the bullet seems pretty desperate. Is there anything in 2A’s text or history that makes the right to keep and bear arms dependent on such a seemingly arbitrary factor?

    As an aside, I’m sure the terrorist infiltrators coming across the southern border are thrilled with decisions like this.

    1. From the decision:

      “Coming directly to the question whether the weapons and feeding devices covered by the challenged legislation enjoy Second Amendment protection, at the first step of the Bruen analysis, we conclude that the answer is no. We come to this conclusion because these assault weapons and high-capacity magazines are much more like machine guns and military grade weaponry than they are like the many different types of firearms that are used for individual self-defense (or so the legislature was entitled to conclude). Indeed, the AR-15 is almost the same gun as the M16 machine gun. The only meaningful distinction, as we already have noted, is that the AR-15 has only semiautomatic capability (unless the user takes advantage of some simple modifications that essentially make it fully automatic), while the M16 operates both ways. Both weapons share the same core design, and both rely on the same patented operating system.”

      The judges are obviously idiots and know nothing about firearms. They should be embarrassed to have exposed their ignorance in such a manner.

    2. Is there anything in 2A’s text or history that makes the right to keep and bear arms dependent on such a seemingly arbitrary factor?

      History shows individuals had the power to own canons. The also had the power to own fully automatic guns. The later was legislated away, and no one has brought a serious case against that federal fireams legislation. It was something the purists sacrificed, not understanding the left NEVER stops infringing on core human rights.

  16. Worst of all, that court makes a political decision using our time and tax money. Now it will cost more time and our tax money to take it up to scotus.

  19. Just which of these judges thinks that any type of gun can be exempted from the 2nd amendment? How did these people get through the bar exam? Affirmative action judges?

        1. So..the Constitution is not worth fighting to preserve? C.X. stay home and safe while your rights crumble away. Just sayin’

          1. The problem is that these judges cannot understand English and grammar and then interpret the 2nd Amendment according to their bias. The US Constitution is one of the simplest documents on Earth with no ambiguity. Then again if they ever thought that slavery would be abolished and that the Immigration Act of 1965 would come to pass, they would have written it differently.

Comments are closed.