7th Circuit judge: Don't limit gun choices to government :: 04/29/2015

A federal appeals court judge yesterday delivered a blunt dissent in a 2-1 ruling by a 7th U.S. Circuit Court of Appeals ruling in which he asserted that allowing government to determine which firearms people may own transfers too much power to government, according to Newsmax.com.

But Judge Daniel A. Manion was on the losing side of a court challenge to a ban on so-called “assault weapons” by the city of Highland Park, Illinois. The majority sided with the city, saying in a 12-page opinion that, “If a ban on semi-automatic guns and large-capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.” The majority opinion was written by Judge Frank Easterbrook. Read both opinions here.

Analyze that language for a moment. If a ban reduces the perceived risk…and makes the public feel safer…” That translates essentially to the court perpetuating what amounts to an illusion. If the plaintiffs in this case want to appeal this decision, they might use Judge Manion’s dissent as the foundation for that appeal.

“To limit self-defense to only those methods acceptable to the government” creates an “enormous transfer of authority from the citizens of this country to the government — a result directly contrary to our constitution and to our political tradition,” Manion said in his 16-page dissent. “Finally, the court justifies the ordinance as valid because it ‘may increase the public’s sense of safety.’ Perhaps so, but there is no evidentiary basis for this finding. The court is not empowered to uphold a regulation as constitutional based solely on its ability to divine public sentiment about the matter.”

And, while Judge Manion agreed that some regulation of firearms is acceptable, he chastised the Highland Park ban as a regulatory “blunt instrument.”

“(R)ather than being the least restrictive means to address these particular public safety issues,” he wrote, “Highland Park’s ordinance serves as the bluntest of instruments, banning a class of weapons outright, and restricting the rights of its citizens to select the means by which they defend their homes and families. Here, one need not parse out the various alternatives that Highland Park could have chosen to achieve these ends; any alternative would have been less restrictive.

“This can only yield one conclusion,” he continued, “the provisions in Highland Park’s ordinance prohibiting its citizens from acquiring or possessing assault rifles or large-capacity magazines are unconstitutional insofar as they prohibit citizens from lawfully keeping such weapons in their homes.”

MEANWHILE, the Second Amendment Foundation yesterday announced a victory in a case it filed on behalf of a permanent resident alien in North Carolina who cannot obtain a concealed carry permit because she is not a citizen. Even the main defendant in the case, Sheriff Brindell B. Wilkins, agreed in court that the law is unconstitutional, and Federal District Judge Terrance W. Boyle mentioned that fact in his five-page ruling.

SAF’s Alan Gottlieb was wearing a smile yesterday. While the ruling granted SAF a preliminary injunction against the law, he said the group, acting on behalf of Felicity Veasey, an Australian citizen who is a permanent legal resident of Granville County, will seek to make the order permanent.

In his decision, Judge Boyle observed, “The inability to carry a concealed firearm for self-defense cannot be quantified by money damages any more than can the experience of being discriminated against solely based on one’s citizenship status.” He further noted, citing another court decision from 2002, that the state “is in no way harmed by issuance of a preliminary injunction which prevents the state from enforcing restrictions likely to be found unconstitutional.”

This is not the first time SAF has taken such a case and won. Some might consider this to be “nibbling around the edges” of the Second Amendment, but that’s about where the current legal situation resides. Since the 2008 Heller ruling and SAF’s 2010 McDonald decision, Second Amendment case law is really being established. This is essentially new legal ground being plowed.

But Gottlieb was candid about it in a Monday press release, noting, “We’re dedicated to making sure that the constitutional right to keep and bear arms is protected for citizens and legal resident aliens alike. This is not our first legal action of this kind, and we will continue to win back firearms freedom, one lawsuit at a time, so long as it is necessary.”

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