Dunce in Judicial Robes Fails to Understand Bruen – Updated

Judge Virginia M. Kendall, for the United States District Court for the Northern District of Illinois, Eastern District opened her mountmouth and removed all doubt as to her abilities.

The case is No. 22 C 4775, Robert Bevis, et all v. City of Naperville, Illinois and Jason Arres, in his official capacity as Chief of Police. It is a challenge to the city of Naperville passing their own little “assault weapons ban”. They could do this because Illinois does not have a preemption law for stricter gun laws.

History

On 2022-08-16, after Bruen was decided, the city of Naperville, IL passed an ordinance to prohibit the local commercial sale of assault weapons.

The ordinance reads like an Everytown press release, or the maybe the Gun Violence Archive. You know, those people that consider a drug deal gone wrong in a bus yard to be a “school shooting”. For justification they have 13 “Whereas” clauses that report that a shooting took place. Many with AR-15 style rifles. 13 over 10 years that is.

The City then takes the stance that it is acceptable to ban the sale of a class of arms because “keep and bear” doesn’t include buy, sell, or make. Those founding fathers only meant that people could continue to keep and bear the arms they already had, not to acquire any more.

Clause 16 mentions the Federal AWB from 1994 through 2004. They point out that the AWB survived constitutional challenges but all were rejected for lack of standing. They conveniently forget that Heller was specifically designed to stop that type of rejection. Heller affirmed that the right to keep and bear arms is an individual right, not reserved to the state or “well regulated militia.”

17 mentions four cases where the circuit courts upheld AWB on state and local levels. All of which took place prior to Bruen and all of which used “means-end” which is explicitly rejected by the Supreme Court. Remember that Bruen didn’t create a new way of interpreting the second amendment, it affirmed the Heller decision which said “text, history and tradition”.

Clause 18 is a doozy. From Heller “Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way.” but the city of Naperville did just that. They say that assault weapons didn’t exist in 1791, were rare prior to 2004 and that the use of “assault rifles” in mass shootings “indicates that assault rifles are uncommon and unacceptably dangerous”.

I think they are trying to say that if a criminal uses a particular arm in the commission of a crime that it makes the arm “uncommon and unacceptably dangerous”.

They then explain how an AWB is illegal for them to pass, so instead they are just going to ban the sale of “assault weapons”.

They have the standard list of things that make a rifle an “assault rifle” in their eyes.
Assault Rifle Ordinance

Memorandum Opinion and Order

The order denies a request for a TRO and a preliminary injunction based on allegations that the Naperville ordinance violates the rights of the plaintiffs (Good guys).

The Judge starts by telling us that mass shootings are common and “assault weapons” are used to commit mass shootings. She then footnotes her use of the term “assault weapon” with “The Court will use the terms, as they are widely accepted in modern parlance and effectively convey the substance of the bans.”

It should be noted that she is correct, everybody knows exactly what we are talking about when we talk about “assault weapon ban”, we are talking about the banning of firearms with scary appearances or which are perceived as scary by infringers or their useful idiots. It totally ignores the actual definition of “assault rifle”. The propagandists have won this battle in this court.

In order for a plaintiff to be granted a TRO or an injunction “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

This is the standard and is quoted in almost every case where a TRO or injunction is requested.

She denies the request because:

…although the plaintiffs have standing to bring this lawsuit, they are unlikely to succeed on the merits of their claim because Naperville’s Ordinance and the Protect Illinois Communities Act are consistent with the Second Amendment’s text, history, and tradition.

Humm, let’s see the proof there judge. This isn’t a question of the what the definition of “is” is.

So now we get to the fun part, taking her arguments apart.

The Supreme Court first recognized that this provision[, the second amendment,] enshrines an individual’s right to keep and bear arms for the purpose of self-defense in District of Columbia v. Heller

Incorrect, as has been pointed out many times in the past, Heller affirmed that the second amendment guaranteed and individual right. Until late in the 20th century nobody claimed that the second amendment was a group right. It made no sense. Then in the late 1900’s courts started striking down second amendment cases for lack of standing.

See the discussion above about Naperville’s assertions about the federal AWB.

It wasn’t until Heller that the Supreme court was given an opportunity to tell the inferior courts “The People means the People, you dunces!”, an individual right.

One of the things that keeps coming up in these cases is the bad guys using “presumptively lawful” statements out of the Supreme Court to justify their infringements. The court must answer the question that is asked of it. They can’t start answering other questions. It doesn’t work that way.

This is why the Miller opinion says that nobody told the court that short barrelled shotguns or any shotguns are used in military/militia contexts. They knew that to be the case, they just couldn’t rule on it because it wasn’t in evidence. In the same way, the court can tell the inferior courts how to form their opinions, how to interpret the law, but they can’t just reach out and rule something unlawful if it isn’t the question before the court.

When the Supreme court says that “forbidding the carrying of firearms in sensitive places such as …” is presumptively lawful, that only means that they haven’t ruled on the constitutionality of that restriction, yet.

Often those words are clues that they want somebody to bring that challenge to them. The sensitive place splurge by infringing states is likely to get “sensitive places” challenged at the Supreme Court. If that happens, the court might very well rule that only very very limited places are “sensitive”.

Here she goes again with “New standard of applying the Second Amendment.” The Second Amendment was always an individual right, that right was stolen from The People. In Heller they got it back. Heller told the courts to use text, history and tradition. The inferior courts instead decided on “means-end”. Bruen told the inferior courts that the two-step methodology of means-end was “one step too many.”

No more means-end.

To quote Virginia quoting Thomas in Bruen, the appropriate standard now is:

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation

Page 15 of her opinion is some serious mental gymnastics. She admits that the Seven Circuit court was using means-end and that the Supreme Court said that was not the right way to judge second amendment cases. She then goes on to say that because the Seventh Circuit Court used means-end for at least five years, there must be something to be salvaged from all that “good law”.

She is attempting to see if Friedman is “still good law”. She does a partial pull quote:

we think it better to ask whether a regulation bans weapons that were common at the time of ratification or those that have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’ and whether law-abiding citizens retain adequate means of self-defense.
— Seventh Circuit court in Friedman

What she left out, which might be important “But instead of trying to decide what “level” of scrutiny applies, and how it works, inquiries that do not resolve any concrete dispute, we think it better…”

So the Seventh Circuit court was discussing how to use means-end (“level” of scrutiny). This is, again, explicitly rejected by the Supreme Court in Bruen.

Because of her pull quote, Virginia believes that she can figure out if the Seventh Circuit court used means-end or if they rejected the question based on whether the arm(s) were covered under the second amendment. This is incorrect. It doesn’t matter what the seventh said prior to Bruen. Post Bruen the courts are required to first determine if the law in question touches upon the second amendment.

The strong implication of the Supreme Court’s opinion is that it is better to over extend the second amendment than to under extend it.

See the multiple rulings from the Supreme court in regards to censorship. The government doesn’t actually have to censor something for it to infringe on first amendment rights, the fact that a law exists that has a “chilling effect” is enough.

Interestingly, Naperville conceded that if the Seventh Circuit used means-end in Friedman then Friedman is bad law. The judge leans towards using Friendman to exclude “assault weapons” from the scope of the second amendment.

Having waded through all of that, she gets it right:

Friedman cannot be reconciled with Bruen. The explanation that semiautomatic weapons were not common in 1791 is of no consequence. The Second Amendment “extends … to … arms … that were not in existence at the time of the founding.” Caetano v. Massachusetts, 577 U.S. 411, 412 (2016) (quoting Heller, 554 U.S. at 582). Relatedly, the Supreme Court has unequivocally dismissed the argument that “only those weapons useful in warfare are protected.” Id. (quoting Heller, 554 U.S. at 624–25). To the extent that the Seventh Circuit classified the weapon as either “civilian” or “military,” the classification has little relevance. And the arguments that other weapons are available and that fewer assault weapons lower the risk of violence are tied to means-end scrutiny—now impermissible and unconnected to text, history, and tradition. See Bruen, 142 S. Ct. at 2127. Accordingly, this Court must consider the challenged assault-weapon regulations on a tabula rasa.

“tabula rasa” means “an absence of preconceived ideas or predetermined goals; a clean slate” – Oxford Languages.

Now she goes off the rails. She lists the classes of prohibitions that are allowed. She pulls these from Heller because Bruen did not explicitly displace the examples provided in Heller

1. “prohibitions on the possession of firearms by felons and the mentally ill”;
2. “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings”;
3. “laws imposing conditions and qualifications on the commercial sale of arms”; and
4. bans on weapons that are not “in common use.”

From this she concludes:

Under this framework, Naperville’s Ordinance and the Protect Illinois Communities Act are constitutionally sound. The text of the Second Amendment is limited to only certain arms, and history and tradition demonstrate that particularly “dangerous” weapons are unprotected.9 See U.S. Const. amend. II; Heller, 554 U.S. at 627.

In the case of Oregon where the state used a long list of laws, regulations, and ordinances from Duke LawDuke Center for Firearms Law. It seems this judge read the same list. She starts with William Blackstone. The words she wants out of this are “dangerous or unusual weapons”. That “or” in there is extremely important to the infringers. If the case is that an arm must be “dangerous and uncommon” then any arm that is common is covered by the second amendment’s plain text. If the courts or infringers can get that wording changed to “dangerous or uncommon” then they focus on showing that the arm is “dangerous”.

Bruen and Heller are clearly stating that a weapon must be both. It must be both unusually dangerous and uncommon before it is no longer within the scope of the second amendment.

Fortunately for us, Blackstone was writing of English common law prior to 1791. While much of American law is based on English Common Law, they are not the same. The Supreme court has explicitly stated that the only laws regarding bans are from the time of the ratification, 1791.

She then goes on to say that the use of guns was not common for self defense in founding era. Instead people used knives and clubs. So laws, regulations, and ordinances regulating the use, carry, or possession of knives or clubs is the same as a gun ban/regulation.

Her first actually listed weapons ban is from the early 1800s. A ban on “Bowie knives”. These Bowie knife bans came about after the Vidalia Sandbar Fight which happened in September of 1827. The last founding father(s) died on July 4th, 1826. This ban is more than a year late to be included in Bruen approved history and tradition.

Of course she has to do the standard game of quoting from rules that say that the government has the power to prohibit weapons that are “dangerous and which are not usual in civilized warfare, or would not contribute to the common defence.” and out of the other side of her mouth tell us that the weapon is too dangerous because it is used in modern civilized warfare and contributes to the common defense.

She then conflates booby trap guns with keeping and bearing arms. I.e. a law that made it illegal to set traps with guns should allow the government to now ban the bearing and keeping of arms.

Excuse me while I wipe up some coffee:

The muzzle velocity of an assault weapon is four times higher than a high-powered semiautomatic firearm.

So a semi-automatic rifle fires a round that travels faster than a round fired from a high-powered semi-automatic firearm?

She continues with “high-capacity magazines share similar dangers. … high-capacity magazines led to five times the number of people shot and more than twice as many deaths…” Damn, that is a super duper magic box and spring.

Note that they are using the language of “gun accessory” to describe magazines. I have pistols that will not function without a magazine. Yet they consider that to be just an “accessory.” The reason is clear, if it is an accessory, then it isn’t an arm covered by the second amendment.

Here we come to the meat of her opinion. She uses “and” instead of “or”

Assault-weapons and high-capacity magazines regulations are not “unusual,” Bruen, 142 S. Ct. at 2129 (Kavanaugh, concurring), or “severe,” Heller, 554 U.S. at 629. The federal government banned assault weapons for ten years. Today, eight states, the District of Columbia, and numerous municipalities, maintain assault-weapons and high-capacity magazine bans—as more jurisdictions weigh similar measures. Because assault weapons are particularly dangerous weapons and high-capacity magazines are particularly dangerous weapon accessories, their regulation accords with history and tradition. Naperville and Illinois lawfully exercised their authority to control their possession, transfer, sale, and manufacture by enacting a ban on commercial sales. That decision comports with the Second Amendment, and as a result, the plaintiffs have not shown the “likelihood of success on the merits” necessary for relief. See Braam, 37 F.4th at 1272 (“The district court may issue a preliminary injunction only if the plaintiff demonstrates ‘some’ likelihood of success on the merits.” (emphasis added)); Camelot Bonquet Rooms, Inc. v. United States Small Business Administration, 24 F.4th 640, 644 (7th Cir. 2022) (“Plaintiffs who seek a preliminary injunction must show that … they have some likelihood of success on the merits.”).

So there you have it. Fancy boxes with springs can be banned because the second amendment doesn’t cover gun accessories that are unusually dangerous or unusual. She does the same with a subset of semi-automatic rifles.

MEMORANDUM OPINION AND ORDER Judge Virginia M. Kendall, Case: 1:22-cv-04775

Update

I cleaned up a couple of wrong words. These are marked with deleted and inserted markup. If you look in the actual source these deletes/inserts actually have a time date stamp saying exactly when I made the changes.

There were a couple of missing close tags where I accidently allowed italics to run on. I sometime have the same thing happen with bold markup. Lots of this is that I write my articles in HTML and not visual mode. The visual mode doesn’t give me as much control and sometimes is not an actual representation of what you will see.

Finally, It isn’t clear from this article but the Plaintiffs(good guys) have standing because one of the plaintiffs is “Law Weapons” a gun store in the city of Naperville.