Federal appeals court considering Illinois assault weapons ban questions ‘popularity contest’ for guns

The arguments before the 7th U.S. Circuit Court of Appeals took place five days before the anniversary of the mass shooting during Highland Park’s Fourth of July parade, which prompted the assault-weapons ban.

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Naperville gunshop owner Robert Bevis, who is challenging the state’s ban on assault weapons, speaks to reporters at the Dirksen Federal Courthouse.

Anthony Vazquez | Sun-Times

Chicago’s violent gangland history came to the forefront Thursday as federal appellate judges confronted lawyers challenging Illinois’ ban on assault weapons, passed in the wake of the mass shooting in Highland Park that is nearing its one-year anniversary.

Judges Frank Easterbrook, Diane Wood and Michael Brennan tussled with the argument that a U.S. Supreme Court decision last summer — and the Second Amendment itself — forbids governments from banning weapons that are “in common use.”

Easterbrook asked whether a Depression-era law against machine guns, following their use in Chicago’s notorious St. Valentine’s Day massacre and other mob hits, was unconstitutional.

“They were especially common in Chicago,” Easterbrook said of weapons like the Thompson submachine gun.

Core to Easterbrook’s question was the notion that governments lose the right to ban weapons once they become popular with the general public — something unlikely to occur if governments were to ban weapons before they hit the marketplace.

“It’s very troublesome to have a popularity contest decide a constitutional principle,” Wood remarked.

The discussion took place as the 7th U.S. Circuit Court of Appeals heard oral arguments in six consolidated lawsuits challenging Illinois’ assault weapons ban. When the hearing ended, Easterbrook summed it up as an “extremely difficult problem.”

It is not clear when the court will rule.

Illinois’ law bans the sale of assault weapons and caps the purchase of magazines at 10 rounds for long guns and 15 for handguns. Anyone who already owns the banned guns is allowed to keep them but required to register them with the Illinois State Police by Jan. 1.

Millions of Americans own those guns, attorneys say.

The law was enacted in January in response to the shooting at Highland Park’s Fourth of July parade that left seven people dead.

Thursday’s arguments took place five days before the anniversary of the massacre. They also occurred less than a week after the one-year anniversary of a crucial Supreme Court decision in question, known as New York State Rifle & Pistol Association v. Bruen.

In it, the Supreme Court found that gun regulations must be “consistent with the nation’s historical tradition of firearm regulation.”

How the 7th Circuit judges rule on Illinois’ law will help determine whether it remains in effect while the legal battle surrounding it continues. Regardless of which way the judges lean, the U.S. Supreme Court will probably be asked to intervene — again.

It has already declined one opportunity to do so.

A separate appeal is pending before the Illinois Supreme Court. That appeal revolves around whether the ban violates equal protection and special legislation clauses in the Illinois Constitution.

Thursday’s arguments put questions about the Second Amendment squarely before the judges on the 27th floor of the Dirksen Federal Courthouse.

Erin Murphy, one of the lawyers challenging the ban, took the brunt of Easterbrook’s questions, including those about weapons like the Tommy gun. She countered that they were not found in the hands of law-abiding citizens but “gangsters and mobsters.”

She also wrote in briefs ahead of Thursday’s hearing that state governments historically declined to ban semiautomatic weapons, even while banning automatics.

State lawyers argued in their own briefs that “there is a well-established tradition pre-dating the Founding era whereby a weapon is introduced into civilian society, proliferates to where it causes a substantial threat to public safety, and is then regulated to curb the public harm stemming from its use.”

They pointed to statistics showing that 10 mass shootings resulting in double-digit fatalities occurred in the 55 years between 1949 and 2004, compared to 20 such shootings in the 18-year period between 2004 and 2022.

During Thursday’s arguments, Deputy Solicitor General Sarah Hunger insisted that the assault weapons banned by Illinois “are not in common use for self defense.”

She also noted that, if weapons cannot be banned once they become popular with the general public, governments would be incentivized to regulate weapons before that can happen. She made the comment before Easterbrook raised his own concerns.

“That does not benefit anybody,” Hunger said.

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