The Volokh Conspiracy
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A Judge Who Understands Firearms
Judge Stephen McGlynn of the Southern District of Illinois asks probing questions about the state’s new rifle ban.
The recently-passed Illinois ban on "assault weapons" and magazines has been subjected to several federal and state court challenges. I previously posted about an adverse decision from the Northern District of Illinois, in which the court appeared to have been seriously misled by the state's "experts" about the nature of the banned firearms. Today I'd like to focus on the oral argument on motions for a preliminary injunction that recently took place before a judge whose electrifying questions and comments exhibited superior knowledge about firearms.
Oral argument on four challenges was held in Harrel v. Raoul on April 12, 2023, before Judge Stephen McGlynn of the U.S. District Court for the Southern District of Illinois. Erin Murphy, counsel in Barnett v. Raoul, conducted the argument for the plaintiffs. A preliminary injunction was sought not only by the plaintiffs, but also by the defendant local state's attorney and the sheriff. Christopher Wells argued for the attorney general, the governor, and director of the Illinois State Police, in opposing injunctive relief.
Following the Supreme Court's decision last summer in the Bruen case, Ms. Murphy explained that "arms" include anything that constitutes bearable arms and all instruments that facilitate armed self-defense. Thus, "a rifle, a pistol, a shotgun doesn't become any less of a bearable arm because it has a pistol grip or a thumbhole stock." And under Heller and Bruen, the only "arms" that can be banned are those that are dangerous and unusual and therefore not in common use by law-abiding citizens.
Judge McGlynn agreed that "there's no question that AR platform rifles are commonly held, typically held" for self-defense. But are there limits on how large magazine capacity may be such that it could be regulated? There's no specific cutoff, Murphy responded, but magazines that are commonly possessed may not be banned. Hundred-round drums are legal in many states, but are not commonly owned for self-defense.
It is not true, Murphy continued, that manufacturers can flood the market and render the common-use test meaningless. In the 1920s, machine guns came on the market but were not in demand by citizens. Gangsters misused them and they were banned. (I would add that, as a practical matter, spending large marketing dollars on a product does not necessarily create demand for it or otherwise make it a success, as illustrated by the many big-budget Hollywood movies that have failed at the box office.)
Judge McGlynn commented that when the Bill of Rights was ratified, hand-held and shoulder weapons were common, but "they weren't the type of weapons that could … quickly cause the death of 20 people." To Murphy's statement that the state must craft laws to keep arms away from those who would misuse them, the judge commented that "the state has many options, but one option is not taking away guns from law-abiding citizens."
While dictum in Heller referred to weapons like the M16 as most useful in military service but unusual in society, the court noted that "today presently standard issued to military personnel is a Mossberg shotgun, a 9-millimeter pistol, a .40 caliber pistol, so just the fact that military people might find it useful doesn't mean that law-abiding citizens can't also find it useful."
The fun begins with the argument of Mr. Wells on behalf of the state defendants. As is typical for advocates of gun bans, he quickly changed the subject from AR-15s to nuclear missiles, tanks, and fighter jets, which are not bearable arms, and then to stinger and javelin missiles, which can be carried by a single individual. As to the latter, the plaintiffs had noted that under Bruen, the burden shifts to the government.
At that point, Judge McGlynn interjected that those who adopted the Constitution thought that "you get to have arms, at least gives you a fighting chance if you were in a militia and we had to beat back the redcoats or somebody else," which "doesn't suggest that you can have a Red Ryder BB gun and that's good enough for you." They "thought the people are going to have … a right to carry arms, that could have some relevant military use if they were pressed in the service in the militia?"
Wells dismissed that question and turned to self-defense, rhetorically asking "what do we know about handguns in particular from Heller?" The court replied: "They have pistol grips." That seemed to be a quip about one of the rifle feature bans.
Just as the length of a barrel may be regulated, such as on a short-barreled shotgun, Wells continued, so can magazine capacity. Referring to the 1934 National Firearms Act, he added,
Thompson submachine guns were not the leading murder weapon of the day, and instead "other weapons" were. He fails to identify these other weapons, but they were pistols and revolvers, which was first on the list of what NFA proponents wanted to restrict. As I've detailed elsewhere, pistols and revolvers were deleted because they were in common use by law-abiding citizens.
The court asked whether the M16 is different than what's sold to civilians, to which Wells noted that "the main difference is automatic fire….M16 is select fire rifle." Wells noted that the M16 was originally named the AR-15, but the army renamed it, "with that 'M' denomination for 'Military.'" The court responded: "For 'Military,' mm-hmm." Judge McGlynn was aware that the "M" stands for "Model."
"So who gets to choose what weapon a law-abiding citizen selects to defend themselves?" asked the court. Wells responded that when machine guns were outlawed, the market didn't get to determine whether they were protected by the Second Amendment, the government made that decision. But Ms. Murphy had already refuted this argument – the American people did not choose machine guns, which thus did not come into common use.
Judge McGlynn brought the issue back to the earth by relating a YouTube video he viewed of a hypothetical scenario in which a man got an alert on his cell phone that his Ring camera detected four big, burly guys with masks on and guns at his front door. He imagines that he's away on a trip and his wife calls saying, "Oh my God, there's men outside. I think they're going to attack. … I'm at the gun safe. I can pull the pump action shotgun that has three rounds, … or I can pull the AR-15 and I can insert the five-round clip that's loaded or I can insert the 30-round clip that's loaded, or I should say magazine."
"Don't you say, grab the AR-15 and take the 30-round magazine because there's four of them and the shotgun, … there's only three rounds in it, honey, and you're going to be panicked and you can't assume that every shot you get off is going to be a lethal shot at first.
"Who gets to decide – does the government get to say, no, ma'am, I'm sorry, you got to go with … the shotgun that has only three rounds in it. … You may not be used to how to load it, but God speed."
Apparently baffled by the judge's hypothetical, Wells could only respond that we regulate many things that are dangerous or can cause harm, such as baby cribs (!). The court: "Baby cribs are not specifically protected by the Constitution." Wells replied that in surveys, 66% of the people chose handguns, shotguns were second, and "only 13 percent rifles."
The court posed the scenario of a guy taking his wife and teenage daughter to a firing range. He has them fire a five-round, pump shotgun. "I don't like it, Dad. … [B]ecause of the significant recoil. And it's loud. I'm afraid of this thing." They then fire an AR-15. "This, I like better. … It's not as heavy. It doesn't have the recoil." And it has a green or red aiming device. Question: "Does she get the right to make that choice? Or do I say, survey says, your best bet is this shotgun?"
Wells responded that "the legislature is entitled to make the choice that in the aggregate, the amount of harm …." The court interrupted, asking whether that was an infringement on the right to bear arms. Wells denied that it is, adding that "in realtime across the board, 87 percent of people are choosing a shotgun or handgun." But given the 2.5 million annual uses of a firearm for home protection, the court rejoined, that left many thousands using "these kind of guns for self-defense in their home."
Next, things got kind of personal. Judge McGlynn asked what is the turnaround time to get a concealed carry permit once it is filed, complaining: "Mine's been pending since September." He wanted to know whether the state was slow-walking permit applications "because they just don't want people having guns?" Wells claimed that he wasn't aware of that.
Next Mr. Wells sought to justify the banned features. A flash suppressor, he erroneously claimed, stabilizes the firearm during rapid fire and prevents flash blindness. "Or during period of a single fire," interjected the court. "So if someone's being attacked in their home, it's night, and they fire their gun and it has a flash suppressor, it reduces the amount of interference with their vision from the flash, does it not?" "So yes, Your Honor."
Those who are elderly or have disabilities like Parkinson's may be shaky holding a pistol with one hand, but more stable and safer with a rifle with a pistol grip. And the thumb hole stock "doesn't make the bullets any more lethal. It doesn't make the gunfire any faster, but it makes it easier for the user to aim it and control the weapon, does it not?" Similar for the arm brace. In sum, "it looks like all kinds of safety features are made illegal by this statute in an effort to make every possible gun that's out there … get you tripped up on it."
Instead of let them eat cake, Wells responded, let them use handguns like police carry. But these police officers have passed their fitness training, countered the court, "what about the 82-year-old lawful citizen trying to save himself at his home?" The specific features are banned, was the reply, because they facilitate "sustained accuracy during periods of rapid fire and concealability." But the reality is that the features facilitate accurate fire by taking the time to aim carefully. And there is nothing concealable about a rifle just because its stock is adjustable by maybe three inches.
Regarding the use of so-called "assault weapons" in crime, the court noted that the Illinois Gun Trafficking Information Act requires the state police to detail information related to firearms used in the commission of crimes, but the state maintains that such information is unattainable. "Why would I go out on a limb on somebody's constitutional rights," and "take Illinois's word for it," regarding firearms about which the relevant data is unattainable? It's the firearm industry's fault, replied Wells.
"Well, how are you able to tell me, people aren't using these guns in self-defense or they're not worthwhile in self-defense or there's not enough elderly people or people with disabilities having tried to defend themselves with arms that they can't handle?" Another unanswerable question from the court.
Let's not forget the telescoping shoulder stock. "Dad is 6'3″, Mom is 5'1″, … doesn't it make sense for them to have adjustable stocks, so that more than one person can use it comfortably and the more comfortable they are, the more likely they are to be accurate in shooting?" Wells agreed that "there are certainly benefits to an adjustable stock," but didn't offer any reason for banning it.
The judge volunteered that, in 1963, Lee Harvey Oswald used a $19, Italian Carcano bolt-action rifle with a scope and six-round magazine, at a moving target 100 yards away, to assassinate President Kennedy. What if he had decided to remain on the 6th floor of the school book depository, the court asked, "to keep firing until they take me out, every minute if every third shot was a kill shot, every second shot was a serious wound and every third shot was a miss, in a minute and a half he's killed eight people with a gun that is perfectly legal under this law."
Wells asked how often that was happening, but conceded that mass shootings have been perpetrated with guns that were legal.
The court next turned to the existence of "lawful gun owners who have committed no crimes, who never threatened anybody, who have a long history of owning firearms and never doing anything wrong facing a class three felony and you and I know what that means. Two to five years." Wells responded with the lame excuses that the law "requires knowledge" and that "we have prosecutors who are imbued with discretion."
But there may be hope outside of the woke Chicagoland parts of Illinois, as the following colloquy reveals:
The Court: Some of them [prosecutors] don't want to enforce this.
Mr. Wells: You're right. Some of them are suing us.
The Court: Sheriffs don't like it either apparently.
Mr. Wells: Sheriffs don't like it.
The exciting dialogue petered out after that. Wells worried that, if the ban is declared unconstitutional, persons convicted under the 1994 federal ban "are now going to be released?" Perish the thought.
Ms. Murphy had a few minutes left for rebuttal, but she summed it up best in one sentence: "The State seems to want to litigate this case as if Bruen never happened."
Judge McGlynn thanked counsel for their excellent briefing but offered the closing comment that from where he and other judges sit, "we have to start looking at not just the guns, but why we have all these troubled teens and young people going through mental health crises. What medicines are they taking? What red flags are we seeing and why are they being allowed to come into school?" They need to be identified and prohibited from access to weapons, but: "Nothing like that is in this bill."