On July 9, the Seventh Circuit decided Barnett v. Raoul, upholding Illinois' ban on AR-15 rifles. Maybe it hadn't received the memo that the Supreme Court granted cert on June 30 on the Seventh Circuit's decision in Viramontes v. Cook County, involving the identical issue of whether an AR-15 ban violates the Second Amendment? Deciding Barnett gives the appearance of the Seventh Circuit filing the equivalent of an amicus brief in support of its prior decision in Viramontes. (Cert was also granted in Grant v. Higgins, which concerns Connecticut's similar ban, see my post here.)
While always ready to uphold any restriction on Second Amendment rights, on July 1 the Ninth Circuit vacated submission in Miller v. Bonta, involving California's similar ban, pending the Supreme Court's resolution of the issue. By contrast, the Third Circuit on July 6 invited supplemental briefs to be filed in its en banc proceeding of Cheeseman and Ass'n of N.J. Rifle & Pistol Clubs, both versus Attorney General of New Jersey, regarding New Jersey's AR-15 ban. The briefs would address the effect of the Supreme Court's recent decisions in Wolford and Hemani. If the court finds the New Jersey law unconstitutional, it will give the Supreme Court a contrasting view to the other appellate decisions that have uniformly upheld the bans.
A look at Barnett on the merits exhibits a doubling down of questionable premises. U.S. District Court Judge Stephen McGlynn oversaw a four-day bench trial and held that the Illinois ban violates the Second Amendment, but the Court of Appeals rejected the lower court's factual and legal conclusions. What is amusing (perhaps shocking) is that it was the Court of Appeals that had previously instructed the district court to hold a trial on various issues, but then the same Court of Appeals rejected the lower court's findings. This raises the question of what was the point of the trial?
In its opinion by Judge St. Eve and joined by Judge Easterbrook, the Barnett court assumed that the banned rifles are "arms" under Bruen step one, but found the ban to be consistent with "the principles that underpin the American regulatory tradition" under step two. Ignoring the fact that the Supreme Court had already decided in Heller that the historical tradition of firearms regulation permitting an arms ban is whether the arm is "dangerous and unusual," the Seventh Circuit went on to do their own analysis as if Heller's binding precedent governing arms bans did not exist.
The court focused "on a leading example of this tradition: regulations of the Bowie knife—or, as one Reconstruction-era court called it, the 'instrument of almost certain death.' Cockrum v. State, 24 Tex. 394, 402 (1859)." Disregarding that Reconstruction only began in 1866, seven years after this antebellum decision, Cockrum involved a Texas law providing that use of a Bowie knife in an unlawful homicide constituted murder. It was no analogue for a ban on peaceable possession: "The right to carry a bowie-knife for lawful defense is secured, and must be admitted." The next sentence after the snippet quoted by Barnett refers to the person "who carries such a weapon, for lawful defense, as he may," who is liable for "an increased penalty … affixed to the abuse of this right, so dangerous to others."
Barnett goes on to refer to laws, which existed mostly in the Southern states, that largely regulated the concealed carry of Bowie knives. No possession bans existed. And the same laws typically restricted the concealed carry of pistols. The court addressed one law that purportedly went over the line – Georgia's ban on carrying pistols and Bowie knives. That law, however, allowed the open carrying of Bowie knives (see Section 4), while barring completely the carrying of pistols. What is more, the Georgia Supreme Court in Nunn v. State (1846) declared the ban on carrying pistols to be violative of the right to bear arms. That was because it banned open carry as well as concealed carry. But "Nunn is only one case," quips Barnett, which is not a surprise as no other state had a total carry ban law. Not to mention that Nunn was endorsed by Heller and Bruen.
Now for the kicker: Barnett acknowledges that "Bowie knives were both widespread and used for lawful purposes." They were "particularly suitable for self-defense" and "typically possessed for self-defense."
Sounds like Bowie knives met the common-use test. Indeed, Bruen noted that in medieval times, "[a]lmost everyone carried a knife or a dagger in his belt," "[c]ivilians wore them for self-protection," and they "strike us as most analogous to modern handguns."
Despite Bruen's reiteration that the Second Amendment protects "weapons 'in common use' today for self-defense," Barnett asserts that "Bruen cuts against the conclusion that a weapon's 'common use' leaves it immune from regulation." (The court takes "regulation" to mean banning.) Citing the cert grant in Viramontes, Barnett claims that "the Court has not set out a comprehensive framework through which to evaluate challenges to restrictions on particular weapons, as its recent grant of certiorari in cases similar to this one indicates." It seems more like the Court has repeatedly done just that, but that some lower courts don't want to follow it.
Chief Judge Brennan dissented in Barnett. Noting that the district court had produced "the most comprehensive trial record in any Second Amendment case to date," he states: "Our Nation's enduring traditions forbid governments from prohibiting firearms commonly owned for self-defense. Because the people have overwhelmingly chosen the AR-15 rifle and its magazine as their weapon of choice, they are protected by the Second Amendment."
A major thrust of the dissent is on the common-use test. "That test properly focuses on the people. The Second Amendment right is an individual right, as Heller held. The Court rejected a test in which judges decide what weapons are necessary for self-defense." Given the millions of AR-15s in civilian hands and their legality in most states, "a court can account for how many of the firearms are owned and how many states ban their possession to determine whether a firearm is in common use." Not much difficulty there.
What is in common use can be manipulated by the government – had the federal "assault weapon" ban of 1994 not expired a decade later, common use of AR-15s would have been receding. Despite the argument that the common-use test is circular because "what can be banned depends on what has been banned," "it is not for us to inject the circularity argument back into Second Amendment law. If a majority of the Supreme Court did not adopt that argument in Heller, neither should we." Similarly, the "dangerous and unusual" test has been criticized because the government can ban a new firearm design when it comes out so that it will always be unusual. But to ban a weapon immediately, "the government must proffer evidence that it is being used by criminals, not law-abiding citizens for lawful self-defense." Otherwise, "the government must 'wait and see' whether and how the public adopts and uses the firearm before it can be banned."
As Chief Judge Brennan states, "To say AR-15s are not in 'common use' does not pass the 'red face' test." The majority does not even try to follow the test, instead applying its newly-minted "particularly dangerous weapons" test. But that novel test is not based on any of the specific features of the AR-15, which the majority lists but avoids any mention of what makes them so dangerous. The dissent does address the features: "The district court also heard from self-defense experts who all reported 'recoil[,] … lighter weight, shorter barrel, and ergonomic stock and grip' make 'AR platform rifles' well suited for self-defense, which is why they are commonly used in popular 'defensive carbine course[s].'"
The bottom line, in Chief Judge Brennan's words: "Whether a firearm is useful for self-defense is not a decision for judges. The people choose which weapons to own for self-defense." Meanwhile, the Supreme Court will have to keep repeating itself to recalcitrant lower courts. The Court will hopefully rein in such lower court obstinacy when it decides Viramontes and Grant.
