Second Amendment Roundup: An Opening Judicial Salvo in Defense of Illinois’ New Rifle Ban
[From the editor: I’m delighted to report that Stephen Halbrook will have a new column here on the blog, Second Amendment Roundup, which will offer a technical focus on recent Second Amendment cases. Halbrook is both a prominent gun rights lawyer and a leading legal scholar: He argued Printz v. United States (the anti-commandeering case) in the Supreme Court, as well as Castillo v. United States and United States v. Thompson/Center Arms Co., and has filed briefs in a vast number of other cases, including the NRA’s party brief in McDonald v. City of Chicago and many amicus briefs in the Supreme Court and in other courts. On the scholarship side, his many articles and books have been cited in over 30 cases (including Heller and McDonald) and over 500 law review articles; his most recent book is America’s Rifle: The Case for the AR-15. He is part of a long tradition of lawyer-scholars outside the legal academy (as of course was Don Kates, another tremendously important exemplar in the same field), though that tradition has regrettably sharply waned in recent decades.
Halbrook is currently a Senior Fellow with the Independent Institute; he represented the National African American Gun Association as amicus curiae in Bruen, and has also recently filed briefs in Duncan v. Bonta (9th Cir.), Rupp v. Bonta (9th Cir.), State v. City of Weston (Fla. Ct. App. 2021), and many other cases. I very much look forward to his posts. -EV]
The latest salvo in America’s “assault-weapon” wars is the decision of February 17 by Judge Virginia Kendall of the Norther District of Illinois in Bevis v. City of Naperville finding that plaintiffs are not likely to prevail on their challenge to the bans under the city’s ordinance or under Illinois’ just-passed Protect Illinois Communities Act.
Just last year in New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court said that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms,” and that the term “arms” “covers modern instruments that facilitate armed self-defense” and “weapons that are unquestionably in common use today.” None of those three phrases found its way into the district court’s decision approving the prohibition of the AR-15, America’s most popular rifle, and many other semiautomatics.
The court started out on the right track recognizing that the plaintiffs had standing and that the harm they sought to alleviate was redressable. It made the interesting point that the Second Amendment “differs from many other amendments in that it protects access to a tangible item, as opposed to an intangible right,” and that makes it similar to the First Amendment, under which “individuals can sue when the government bans protected books or attempts to close a bookstore based on content censorship.”
While five appellate courts had upheld “assault weapon” bans, Bruen pulled the rug out from under them with its text-history approach and rejection of the two-part balancing test. The Seventh Circuit had gone its o
Article from Reason.com