Roberrt Bevis v. City of Naperville (7th Cir.)

This is the oral arguments for the above case. This is an AW/LCM ban case.

I hope you don’t have high blood pressure. I’m going to be reading this tomorrow and figuring out what some of the dumbest things said were.

Case argued by Erin Murphy for Amicus Curiae National Shooting Sports Foundation, Inc. and Ms. Sarah A. Hunger for Appellee State of Illinois in 23-1353, Gilbert Dickey for Appellant Javier Herrera, Ms. Sarah A. Hunger for Appellees Brendan F. Kelly and Kwame Raoul and Jessica M. Scheller for Appellees Toni Preckwinkle and Cook County, Illinois in 23-1793, Ms. Sarah A. Hunger for Appellants Brendan F. Kelly and Kwame Raoul and Erin Murphy for Appellees Caleb Barnett, Brian Norman, Hood’s Guns & More, Pro Gun and Indoor Range and National Shooting Sports Foundation, Inc. in 23-1825, Attorney Mr. Thomas G. Maag for Appellees Jeremy W. Langley, Timothy B. Jones and Matthew Wilson in 23-1827. [157] [7320281] [23-1353, 23-1825, 23-1793, 23-1826, 23-1827, 23-1828] (KRA)

Case heard and taken under advisement by panel: Frank H. Easterbrook, Circuit Judge; Diane P. Wood, Circuit Judge and Michael B. Brennan, Circuit Judge. [156] [7320278] [23-1353, 23-1825, 23-1793, 23-1826, 23-1827, 23-1828] (KRA)
Robert Bevis v. City of Naperville, 23-1353, (7th Cir.)

EASTERBROOK: Morning, ladies and gentlemen, we are ready for argument in Beavis against the
EASTERBROOK: city of Naperville and some consolidated cases.
EASTERBROOK: Miss hunger.
Hunger: Good morning, your honors, and may it please the court.
Hunger: I’m deputy solicitor general Sarah hunger.
Hunger: And today I will be presenting argument on behalf of the state parties, the
Hunger: city parties and the Naperville parties.
Hunger: Jessica Scheller will be presenting argument on behalf of the Cook County
Hunger: parties. She will be prepared to answer any questions specific to Cook County
Hunger: and otherwise plans to present argument on issues raised in their briefing,
Hunger: such as historical analogs like gunpowder restrictions and other issues
Hunger: related to the scope of the second amendment.
Hunger: With respect to my presentation, unless the court has a contrary preference,
Hunger: I will begin with the plain text of the second amendment and then turn to the
Hunger: historical tradition,
Hunger: each of which provides an independent basis for this court to affirm the
Hunger: Beavis and Herrera court’s denial of preliminary injunctive relief and reverse
Hunger: the Barnett court’s grant of a preliminary injunction.
Hunger: We know from Bruin that courts must begin by assessing whether the regulated
Hunger: instrument is protected by the plain text of the second amendment.
Hunger: We also know from both Bruin and Heller that not all instruments fall within
Hunger: that category. The instruments must be arms.
Hunger: They must be bearable and they must be in common use for self-defense.
Hunger: The instruments at issue here do not satisfy that standard for at least two
Hunger: reasons. First, large capacity magazines are not arms.
Hunger: They are accessories that are not necessary to the operation of any firearm.
WOOD: And I take it when you say that you’re, you understand some sort of ammunition
WOOD: feeding device needs to be there, but it could be a 10 round device,
WOOD: not a 30 round or something bigger.
Hunger: Yes, of course, Your Honor. At issue here are only the large capacity magazines
Hunger: that are restricted by the act.
Hunger: The act does not strict restrict anybody’s ability to use a magazine to
Hunger: operate their firearm. And because the record here plainly shows,
Hunger: and it’s unrebudded by the plaintiffs, that there is no need for a magazine in
Hunger: excess of 10 rounds for rifles or 15 rounds for handguns that they do not
Hunger: constitute an arm under the second amendment.
Hunger: Even however, if that were not the case, large capacity magazines and assault
Hunger: weapons fall outside of the plain text because they are not in common use for
Hunger: self-defense.
BRENNAN: There’s much discussion this hunger about a burden.
BRENNAN: I think the state, the county, the Naperville all place a burden on the
BRENNAN: petitioners for purposes of establishing this first step.
BRENNAN: Where is that found? What’s the authority for that?
Hunger: In Bruin, there are several if then statements that says if the weapon is
Hunger: within the plain text of the second amendment, then the government bears the
Hunger: burden of demonstrating that is consistent with historical tradition.
Hunger: If the government bore the burden at both steps of the analysis, then the
Hunger: Supreme Court would not have used that language.
BRENNAN: Well, Bruin is clear that the government’s got a role here on the second
BRENNAN: step. It says so.
BRENNAN: Bruin never says the burden shifts from petitioners to respondents.
BRENNAN: We’re left wanting for the source of authority as to why a burden on the
BRENNAN: first step would be on the petitioners, aren’t we?
Hunger: Well, I suppose the burden does have to be on somebody.
Hunger: And we know that the government does bear the burden at the second step.
Hunger: And as I said, there is that kind of if then language.
Hunger: But regardless here, whoever’s burden it is, our position is, even if it were
Hunger: the government’s burden, that these are not in common use for self-defense.
Hunger: That’s because assault weapons make up only 5% of the arms in circulation
WOOD, Hunger: and they’re owned by only 2% of Americans and 8% of gun owners.
WOOD, Hunger: Before we get too far down that path, which we certainly should come back to
WOOD: because there’s a great debate going on about what we’re talking about when we
WOOD: talk about common use.
WOOD: Are we talking about numbers?
WOOD: Are we talking about purpose?
WOOD: Are we talking about percentages?
WOOD: And to what extent, you know, do we anchor this in a particular point in time?
WOOD: But I want to back up and ask you what the state’s definition of a bearable arm is.
WOOD: Does that mean something you can carry?
WOOD: Or does that mean something that were ordinarily in 1791 in someone’s
WOOD: household or what’s a bearable arm?
Hunger: Our view is that it likely would mean something that someone could carry.
Hunger: And that is why it is our view that it is not an appropriate standard for the plain
Hunger: tech step and why it makes more sense to look at whether or not something is in
Hunger: common use for self-defense or else, you know, you could literally have shoulder
Hunger: fired rocket launchers would count as bearable arms and then you have to go
Hunger: into the second step of the analysis and do this huge historical inquiry.
Hunger: When everyone knows those are military grade weapons that are not protected by
Hunger: the Second Amendment.
WOOD, Hunger: Well, I take it your opponents concede that even M16s are not the kinds of arms that
WOOD: the Second Amendment protects for personal use for self-defense.
Hunger: That’s correct.
Hunger: And that’s a really important point, Your Honor, because assault weapons are
Hunger: virtually identical weapons to M16s.
Hunger: But for one thing, which is that M16s can use automatic fire instead of
Hunger: semi-automatic fire and I’m sure that is a distinction, but it is not one
Hunger: that’s constitutionally determinative.
Hunger: If you look at, you know, what Heller said about M16s, the reason why the
Hunger: state may ban them is because they’re weapons of war.
Hunger: It’s not because they can, they use automatic fire.
Hunger: And so, yes, plaintiffs have identified that distinction, but they have not
Hunger: explained why it’s important.
Hunger: And we think here, given that we know that the state and the federal
Hunger: government can ban automatic weapons like M16s and because assault weapons
Hunger: are essentially M16s, we think it could be a relatively simple case on that
Hunger: line alone.
Hunger: But of course, our view is also that we have shown, even though we do not believe
Hunger: it’s our burden, that these are not in common use for self-defense and also
Hunger: that they are consistent with the historical tradition of regulating
Hunger: dangerous and unusual weapons.
Hunger: So again, back to Judge Brennan’s question, regardless of who carries the
Hunger: burden here, we believe that the state should prevail.
Hunger: And I would also note that this is at a preliminary injunction stage where the
Hunger: plaintiffs carry the burden to show that they are likely to succeed on the merits.
Hunger: And here, you know, the plaintiffs have presented virtually no evidence in
Hunger: support of their case and the state and the city and the county and the city of
Hunger: Naperville have come in with dozens of declarations from historians, from
Hunger: doctors, from medical experts to meet each step of the burden, regardless of
Hunger: where it falls.
WOOD: Can I ask you another question?
WOOD: Everybody here has been assuming, it seems to me, that in the wake of
WOOD: Bruin, we have this two-part test.
WOOD: First of all, looking at the plain text of the Second Amendment.
WOOD: And if the weapon in question seems to fall within that plain text, then
WOOD: there’s a presumption of constitutionality, which then is the states, I’ll
WOOD: just call it the state, the state’s burden to rebut.
WOOD: So a two-step test.
WOOD: And I keep bumping into the fact that in Bruin itself, the Supreme Court said,
WOOD: the courts of appeals have been following a two-step test, but we think
WOOD: that’s one step too many.
WOOD: And so you know the line.
WOOD: I do know the line, yes.
WOOD: And so why are we back in a two-step test anyway?
Hunger: Well, I have had a similar thought, but I think what the Supreme Court was
Hunger: saying there was that means and scrutiny is the stuff that’s too far.
Hunger: But then, of course, ironically, it did go back and say, we’re looking at the
Hunger: plain text, and then if that’s satisfied, we look to history and tradition.
Hunger: So, you know, maybe it’s step one A, B, you know, I’m not quite sure, but it
Hunger: does seem like there are two parts to the test, even if technically we’re
Hunger: out of the two-step test zone.
WOOD, Hunger: But just to be clear, you just said a minute ago that it’s the state’s
WOOD: maybe preferred position, or at least I’m inferring that you mean preferred
WOOD: position, that you can look at the text of the Second Amendment, somehow
WOOD: discern from that word arms, you know, keep and bear arms, the notion that
WOOD: it’s talking about non-military weapons, the kind of things somebody would
WOOD: use for self-defense, perhaps lawful sporting purposes, there, you know,
WOOD: there’s a set of lawful purposes.
WOOD: And that’s enough that we somehow can intuit from those words in the Second
WOOD: Amendment, this classification.
Hunger: Well, I do think if you look at, I believe it’s the threshold paragraph
Hunger: in Bruin, where Bruin discusses the plain text analysis, the court does
Hunger: discuss arms that are in common use for self-defense.
Hunger: The court could have said bearable arms or arms or something else, but it did
Hunger: not.
Hunger: And so we know that there’s something more there than just is this literally
Hunger: a weapon in some capacity and can you carry it from one place to another.
Hunger: And so our view is that it makes the most sense to take that language that
Hunger: was used by the court and apply it.
Hunger: And we also think as a practical matter, it makes sense because if you’re
Hunger: looking at common use, you’re looking at suitability, you’re looking at
Hunger: intended purpose, which can also go to whether or not something is military
Hunger: grade, or is it used for criminal purposes?
Hunger: And, you know, our view is that those concepts are also inherent in this
Hunger: in common use for self-defense line that Bruin used in that threshold paragraph.
BRENNAN: I struggle with that argument, though, because in that paragraph, it connects
BRENNAN: the two petitioners, the people.
BRENNAN: It never, though, connects arms to in common use for self-defense.
BRENNAN: That’s elided.
Hunger: Well, it does say that handguns, which were the arm at issue in that case,
Hunger: are in common use for self-defense.
Hunger: So I think that’s the connection, but you’re right.
Hunger: It doesn’t say the definition of arm is in common use for self-defense.
Hunger: I think there’s a lot in Bruin that we have to kind of look to and interpret.
Hunger: And so from our perspective, that is the language that’s used in Bruin.
Hunger: And it does actually make sense as well as a practical matter when courts are
Hunger: looking into what does this plain text inquiry mean?
BRENNAN: We’ve got to look at this amendment in light of all the amendments.
BRENNAN: And I can’t think of another constitutional amendment that would be
BRENNAN: approached in this manner that would read it so narrowly from the front end.
BRENNAN: We certainly don’t read the first amendment that way.
BRENNAN: We don’t read the fourth amendment that way.
Hunger: Well, I don’t necessarily think that that’s a narrow category.
Hunger: You know, in common use for self-defense, for example, the court has already said
Hunger: means handguns.
Hunger: You know, it can also mean any number of other weapons, for example,
Hunger: the semi-automatic weapons that are not restricted by the act.
Hunger: And that are in common use for self-defense in some ways.
Hunger: You know, there are a lot of weapons out there.
Hunger: And we’re talking about a very narrow group of weapons here.
Hunger: And so our view is that it’s not unnecessarily or unduly narrow.
Hunger: And I would also note that even though the second amendment test is different
Hunger: in some ways than First Amendment or Fourth Amendment or Fifth Amendment,
Hunger: it’s certainly not unheard of for the threshold question in some of those
Hunger: tests to be more significant, especially in any given particular case.
Hunger: That would involve either a robust legal or factual analysis.
Hunger: For example, I know right now, you know, there is a big debate over
Hunger: cell phone encryption under the Fifth Amendment.
Hunger: Is that a statement?
Hunger: That’s the threshold question.
Hunger: And that could be the one that the court is looking at more robustly
Hunger: in any specific type of case.
Hunger: If you’re looking at dog-snipping cases under the Fourth Amendment,
Hunger: whether or not something as a search is a threshold question.
Hunger: And so while it might not be as robust of an inquiry or a slightly different
Hunger: inquiry, we don’t think it’s different in kind, such that there cannot be
Hunger: some teeth to the plain text step.
WOOD: Can I ask, when you talk about arms in common use for self-defense,
WOOD: do you see this as an objective test?
WOOD: Do you see it as a subjective test?
WOOD: When somebody buys their AR-15, they say, well, I personally expect
WOOD: that I’ll use this for self-defense.
WOOD: Is that enough to make it self-defense?
WOOD: Or do we need to look at statistics?
WOOD, Hunger: Or how do we make sense of this?
Hunger: I don’t think it’s a person-by-person, you know, subjective test.
Hunger: But I do think what people generally use for self-defense is relevant.
Hunger: And we have several expert declarations.
Hunger: I believe it’s the Andrew Declaration, Bussie and Yergulitis.
Hunger: Let’s say that Americans typically choose other weapons for self-defense.
Hunger: They typically choose handguns and shotguns.
Hunger: And that’s because they are more suitable for self-defense purposes.
Hunger: You can conceal them.
Hunger: You can maneuver them more quickly.
Hunger: And they are not overpowered in the way that assault weapons
Hunger: and large capacity magazines are for self-defense purposes.
Hunger: And so I imagine, you know, it might be slightly different for each case.
Hunger: But yes, the court could look at statistics, intended use, expert declaration.
Hunger: Also here, just the history and nature and marketing of these weapons shows
Hunger: that they’re offensive, militaristic weapons.
Hunger: That’s what they were designed for.
Hunger: And that’s how they’re being used today.
Hunger: That’s why they’re being regulated by the state and these localities
Hunger: because they are the perfect instrument for lone shooters who have little
Hunger: to no training to take, you know, an assault weapon and large capacity magazines
Hunger: and murder people in minutes, if not seconds.
Hunger: And that wreaks havoc not only on those who are present through injury and death,
Hunger: but also the entire communities.
Hunger: They’re very traumatic events.
Hunger: There are economic consequences.
Hunger: It’s also a very significant burden on law enforcement.
Hunger: And so what is happening is these mass shooters are using them in offensive ways
Hunger: because that is what they were designed for, although, of course,
Hunger: they were designed for the battlefield.
BRENNAN: But we spent quite a bit of time on the first step.
BRENNAN: Let’s move to the second step.
BRENNAN: We’re supposed to ask the how and the why.
BRENNAN: Yes. How the regulation burdens and why it burdens.
BRENNAN: Is there any why in support of the act that did not also apply to public carry
BRENNAN: in Bruin?
Hunger: Yes, I think this is a very specific why here, which is what I just discussed.
Hunger: We have these lone shooters that are taking these offensive militaristic weapons,
Hunger: these specific weapons, and they are using them to, you know, attack communities
Hunger: and public events.
Hunger: And I think that’s different than the concealed carry why, which is more kind
Hunger: of interpersonal violence on a kind of a one to one level.
BRENNAN, Hunger: And so it’s all gun violence.
BRENNAN, Hunger: You’re segmenting a portion of the gun violence and saying that’s the why it is.
Hunger: And, you know, I don’t think it would be sufficient for us just to say public
Hunger: safety, you know, generally.
Hunger: And that’s not what we’re saying.
Hunger: We have a very specific reason for having enacted these restrictions.
Hunger: And that why does line up to the why of the early 20th century with the restrictions
Hunger: on automatic and semi-automatic weapons, which I would note, even plaintiffs do
Hunger: not dispute that that history is relevant here.
Hunger: And those are virtually indistinguishable from the restrictions here today.
Hunger: And we know from Heller and from Miller that those types of restrictions are permissible.
WOOD, Hunger: I would also.
WOOD, Hunger: But can I just interrupt and say.
WOOD: One of the big themes that your opponents urge in all of their briefing, and believe
WOOD: me, there are plenty of briefs filed in this case, is the fact that regrettable, I mean,
WOOD: horrible as it is, that there are these mass shooting incidents, they’re not that many
WOOD: of them compared to the number of people who own these weapons.
WOOD: And they say, why would you take away the guns from all of these other people who aren’t
WOOD: going out there and shooting out of a hotel room, just because some rogues are?
Hunger: So a few responses to that, Your Honor.
Hunger: First, the number of mass shootings, as our experts have explained, is unfortunately increasing.
Hunger: So there are a substantial number of these mass shootings in this country.
EASTERBROOK, Hunger: I would also note that the.
EASTERBROOK, Hunger: I must say, though, I don’t understand how that’s anything but an effort to get
EASTERBROOK: means and scrutiny and through the back door, you’re saying the state has a good reason
EASTERBROOK: for doing what it’s doing.
EASTERBROOK: That’s exactly what the means ends business is about.
EASTERBROOK: So how can we, given what Ruin said about means and arguments, how can we consider this?
Hunger: I think we can under the justifications prong of what is relevantly similar.
Hunger: The court specifically asked to look at the how and the why, which it noted included the
Hunger: justifications for the act.
Hunger: I understand that the court did also say that there cannot be any means and scrutiny.
Hunger: And so we are not asking the court to engage in any type of interest balancing or means
Hunger: and scrutiny that we are presenting the justification for this act.
EASTERBROOK, Hunger: And we are saying that it is relevantly I hope you see you’re just repeating the reason
EASTERBROOK: why I asked my question.
EASTERBROOK: You’re asking us to consider through the back door something that Bruin bars at the front
EASTERBROOK: door. And I wonder whether that’s consistent with our role as what the Constitution calls
EASTERBROOK: an inferior court.
Hunger: Well, it is consistent with Bruin because there’s another door in Bruin, which is the
Hunger: justifications. And I understand that that might be slightly contradictory for what the
Hunger: court would have said in Bruin, but it is what the court said.
Hunger: They did use the word justifications.
EASTERBROOK, Hunger: So we not only get the two part tests that they expressly said was one part too many,
EASTERBROOK: but we also have the very same criteria that courts of appeals used before Bruin,
EASTERBROOK: even though they were expressly disapproved.
EASTERBROOK: Does your argument really hinge on this?
Hunger: It does not really, it does not really hinge on this.
Hunger: But I would also note that the justifications in the way that we see it fits into the historical
Hunger: tradition approach. But but no, our argument does not hinge on this because these are not
Hunger: weapons in common use for self defense.
Hunger: They are dangerous and unusual, and they are consistent with the historical tradition,
Hunger: whereby states, the federal government and other localities will regulate
Hunger: a weapon once it has been introduced into society, once it proliferates to the point
Hunger: where it is causing harm. And then the state comes in to to regulate in that respect.
WOOD, Hunger: And so so I take it you’re saying there’s no statute of limitations on the state, a
WOOD: weapon can be can be introduced, and maybe the state doesn’t realize right away that
WOOD: it’s going to be a problem. And some at some later time, the legislatures and the appropriate
WOOD: authorities in the state say, actually, it is it is turning out to be a problem.
WOOD: So so there’s no what has been called by some an easement.
Hunger: Well, no, your honor, and that, you know, in our view, that that is the way that governance
Hunger: should work is that the state is only regulating when there is a problem.
Hunger: Otherwise, there would be over regulation by the state, and the state would feel the need,
Hunger: you know, as soon as any new weapon came on the market to regulate it immediately, or
Hunger: else it would lose the ability to do so. And I think that does not benefit anybody.
Hunger: Does not benefit the state or our residents, you know, or or those who would like to use
WOOD, Hunger: those weapons. I do see that I am going into my rebuttal time.
WOOD, Hunger: Can I ask you one last question, though? You’ve a couple of times referred to dangerous
WOOD: slash unusual. And there’s been some side debate about whether something has to be both
WOOD: dangerous and unusual, whether it needs to be dangerous or unusual, unusually dangerous.
WOOD: I mean, you can play with these words as as you wish.
WOOD: But it could make a difference, you know, because if it’s if it’s dangerous in a way
WOOD: that is not typically the case for other other guns of various kinds of their firearms, then
WOOD: maybe that’s one thing. If usual just means how many of them can you count, then there are a
WOOD: lot of them out there. Everybody keeps using this number 24.4 million.
WOOD: So so what are we to make of that little phrase?
Hunger: So so we view that term more as a term of art and not looking at is something unusual,
Hunger: AKA, you know, is it common? And that is consistent in our view with the history because there were
Hunger: weapons that were popular, like the automatic weapons or certain knives and clubs and pistols in
Hunger: the 19th century. But that were restricted, especially, you know, in the 19th century with
Hunger: respect to concealed carry and then possession requirements in the early 20th century. And
Hunger: the Supreme Court has noted that those are permissible. And they could not have done so, if
Hunger: it were the case, that any type of popular weapon could not be dangerous and unusual.
WOOD, Hunger: Thank you. Thank you.
Miss Schreller.
Scheller: Good morning, and may it please the court. My name is Assistant States Attorney Jessica Scheller, and I
Scheller: will be presenting argument this morning on behalf of the county defendants. There are three
Scheller: independent bases upon which the court may affirm the denial of Dr. Herrera’s preliminary injunction
Scheller: beyond those discussed by the state in their presentation this morning. We would like to draw
Scheller: your attention to these points. The AR 15 sought by Dr. Herrera is not protected by the Second
Scheller: Amendment. It is not an arm, as that term was interpreted by Heller. Next, the AR 15 is not
Scheller: protected as its use is not consistent with this nation’s historical tradition of moderate self
Scheller: defense. It is instead a dangerous and unusual weapon. And finally, this nation’s historical
Scheller: tradition supports regulation of materials causing mass death, even those protected by the
BRENNAN, Scheller: Second Amendment, such as gunpowder. Isn’t the gun, why for gunpowder, though, different than the
BRENNAN: why here? I’m on the second step of brewing. The why for gunpowder was to prevent fires and
BRENNAN: explosions. That’s why they limited it, right? Isn’t the why here different, whether it’s public
BRENNAN, Scheller: violence generally or a segment of public violence? We would disagree, Your Honor. The why in this
Scheller: particular instance is to prevent mass death caused by the carelessness or callousness of an
Scheller: individual or small group of actors. That is the same why, which led to the regulation of gunpowder
BRENNAN, Scheller: in under the England English common law and carrying through our nation’s formation. You see how we
BRENNAN, Scheller: might have some concern with that being overbroad. Yes, however, there is an additional why, which
Scheller: supports this contention. And that is, as noted by Heller, gunpowder restrictions were in part to
Scheller: protect the firefighters who were coming onto the scene to help aid and render assistance. And
Scheller: similarly here, we have provided several instances where law enforcement officers responding to
Scheller: mass shooters armed with AR-15s are afraid to engage the situation or otherwise delayed in
Scheller: engaging the situation while they pull in military equipment such as a bearcat or a personnel
Scheller: carrier to breach the law or in the unfortunate circumstance of Uvaldi, where law enforcement
BRENNAN, Scheller: did not engage at all due to fear of engaging with that particular weapon. So isn’t Mr. Herrera’s
BRENNAN, Scheller: argument precisely that? He needs to be protected when as a SWAT medic he goes to the scene? Dr.
Scheller: Herrera is not a member of the SWAT team. He is a medic. However, if that was necessary as part of
Scheller: his participation in the SWAT team, it would certainly be outside of the prohibitions of our
Scheller: ordinance. And I suspect the other regulations as well. The Cook County ordinance does provide an
BRENNAN, Scheller: exemption for law enforcement officers. So for Mr. Herrera’s particular case, Dr. Herrera’s particular
BRENNAN, Scheller: case, you’re indicating he could carry a weapon to the scene? Is that your position? No, I do not
Scheller: believe that Dr. Herrera is a law enforcement officer, nor do I believe he has put forth any
Scheller: evidence from any entity that he is required to carry this weapon as part of his duties related to
Scheller, WOOD: his volunteer capacity in the SWAT team or paid capacity, whatever the case may be. So you’re just
WOOD: saying that if the SWAT team wanted him to have a weapon, he would fall within the exemption, but
Scheller, WOOD: he’s just in the truck basically? Correct. But turning back to our first argument, which I think is
Scheller: incredibly important for this court to consider. Heller and Bruin instruct us first to look at the
Scheller: plaintext of the Second Amendment. And so rather than calling it a two step test, I will say the
Scheller: plaintiff is required to plead a prima facie case, bringing the prescribed conduct within the scope
Scheller: of constitutional claims. And he’s failed to do so here. The threshold analysis on the merits
Scheller: must be whether the AR-15 sought by Dr. Herrera falls within the plaintext of the Second Amendment
Scheller: and put simply it does not. As to the plaintext analysis, Bruin is of limited utility, as the
Scheller: party stipulated the Second Amendment applied to handgun regulations. However, Heller is both
Scheller: instructive and dispositive on the issues raised here. In Heller, the Supreme Court interpreted the
Scheller: operative clause of the Second Amendment. And before turning to the verbs keep and bear, the
Scheller: court interpreted their object or arms at page 581. And applying a historical understanding, the
Scheller: court noted that arms in 1773 was understood to mean weapons of offense or armor of defense. However,
Scheller: the court went on and stated the term was applied then as now, meaning in 2008, to weapons that
Scheller: were not specifically designed for military use and were not applied in the military capacity.
Scheller: That’s Heller at 582. And it’s particularly deadly to Dr. Herrera’s claim here. When you look at the
Scheller: AR-15, how it was developed, why it was developed, and at whose request it was developed. In 1957,
Scheller: the U.S. government invited Armolite, a weapons manufacturer, to produce a lightweight, high
Scheller: velocity rifle with firepower capable of penetrating a steel helmet or standard body armor at 500
Scheller, WOOD: yards. So you have actually spelled a lot of this out in your briefs. And so in the interest of time,
WOOD: I guess I’m having trouble and my trouble extends to what your opponents are going to argue too. As
WOOD: I stare at the language of the Second Amendment, there’s a lot of interpretation that’s necessary. I
WOOD: guess I’ll just say that. Before you can understand, you know, what’s the point of the
WOOD: Preferatory Clause. Heller said it doesn’t drive the whole thing. Fine, there’s an individual right.
WOOD: But what are the arms? What does it mean to keep and bear the arms? Who are the people? I mean,
WOOD: all of these are terms that require some interpretation. And in our case, unlike Heller,
WOOD: unlike Bruin, requires us to zero in on what are the arms. And I’m curious as to what you think the
WOOD: Supreme Court is telling us we need to do, whether we should just all become, you know,
WOOD: weaponry experts and apply our own understanding or whether there’s some historical test. And
WOOD: that’s a little hard to do since, as you were just saying, it’s not until the 1950s that these
WOOD: particular weapons are fully elaborated. Then there are other people who say, oh, you know,
WOOD: there were repeating things back in the 15th century. But I think it’s fair to say these are
Scheller, WOOD: distinctive weapons. But how do we do this? I think there are two different questions that the
Scheller: court could ask itself in this particular circumstance. And the first is, it would look to
Scheller: Heller, which said that Miller stands for the principle that it is the characteristics of the
Scheller, WOOD: weapon, which determine whether or not it is protected. So now we’re looking at weapons.
Scheller, WOOD: So we’re all just to pause. We are all still on the same page that when we see that word arms in
WOOD: the Second Amendment, we actually know that we have a sorting job. You know, maybe nuclear weapons
WOOD: are on one side of the sort and small handguns that many people keep for their protection are on
WOOD: the other side. And then there’s this myriad of other things. And so it’s the sorting principle
Scheller, WOOD: that I’m interested in. So I think the next step or the sorting principle would go to the historical
Scheller: legal traditions announced by Blackstone and carried forth through our nation’s tradition
Scheller: of moderation in terms of self defense. So Bruin, Heller, McDonald, all of these cases and all of
Scheller: these presidents stand for the notion that the core right is self defense. And if we look to
Scheller: the founding scholars, there was always layered within the concept of self defense, a principle
Scheller: of moderation that goes back to cases resolved by the King’s bench, cases resolved at the time of
Scheller: the founding, and it carries forward through Illinois law to this day. There has always been a
Scheller: notion that you cannot use an excessive amount of force, even in self defense, or it becomes a
Scheller: crime in and of itself. And so while Illinois law certainly doesn’t govern the constitutional
Scheller: interpretation, it does inform this court of the nation’s historical tradition with regard to
Scheller: regulation and how self defense has been acknowledged and applied. And self defense is not an unlimited
Scheller: right. It’s not designed for someone to play commando with military grade weaponry, but rather
Scheller: it’s meant to defend against confrontation of some limited means, as acknowledged in Heller,
Scheller: which said that it’s not designed to prevent any type of confrontation, but there is some type
Scheller: of right to defend oneself. And we think Blackstone is the touchstone to determine where the founders
Scheller: were and what their thinking was when the Second Amendment was enshrined.
BRENNAN: Ms. Schiller, what is your best argument for historical analog? Is it gunpowder? What are you
BRENNAN, Scheller: relying on if you’re putting forth your best foot on that stuff? We have two. If we’re dealing
Scheller: specifically with regulations within the home, both gunpowder and spring guns are historical analogs.
Scheller: We believe gunpowder is an appropriate analog because it’s the why is a nice fit with regard
Scheller: to preventing mass death. But the spring gun is also a historical analog because that was
Scheller: certainly a firearm kept within the home to protect the home. And yet it was determined
Scheller: to be unlawful because of the indiscriminate way in which it would effectuate its remedy.
Scheller: Because it was protecting property, not personhood?
Scheller: Not necessarily. It was to protect against intruders. And it would be an unusual analysis
Scheller: if it was okay to ban something that could unintentionally harm third parties,
Scheller: but not to ban a similar problem where it’s used with intent. There’s simply no analog in the
Scheller: law for that type of logic split. And unless the court has any further questions, I see that I am
Scheller: close to my verbal time. Thank you. Thank you, counsel.
Murphy: Good morning, your honors, and may it please the court. Erin Murphy,
Murphy: counsel for the Barnett plaintiffs. This morning I’m going to be prepared to address the core
Murphy: issues that are common across all of the appeals. Mr. Mag will then present argument on behalf of
Murphy: the Langley plaintiffs who are parties to the Barnett appeal. And Mr. Dickey will present argument
Murphy: on behalf of the Herrera plaintiffs and address the issues that are specific to the Herrera case
Murphy: and the city and county ordinance that are issued there.
Murphy: Millions of law abiding Americans possess the semi-automatic rifles, pistols, and shotguns
Murphy: that Illinois has merely banned, and millions more own the magazines that Illinois has now
Murphy: declared illegal. Under the Supreme Court’s decision in Bruin, that forecloses the state’s
Murphy: effort to prohibit them, as Bruin teaches that our historical tradition is one of protecting
EASTERBROOK, Murphy: arms that are in common use today. Your whole argument seems to depend on the word today,
in common use today. So I’d like you to consider the ban on machine guns in 1938.
EASTERBROOK: Was that unconstitutional? Because in 1938 machine guns were in common use,
EASTERBROOK, Murphy: much as the AR-15 is in common use now. I don’t think so for two reasons. First,
Murphy: they actually were not nearly anywhere near as common as the AR-15s. As the state’s own expert
Murphy: has said, there are a lot more weapons altogether now than then. Certainly, but as the state’s own
EASTERBROOK, Murphy: expert said, they were not particularly common at the time, but more importantly, they were
EASTERBROOK, Murphy: especially common in Chicago. What Heller said is that the reason they could be prohibited
Murphy: is because they were not typically possessed by law abiding citizens for law purposes.
Murphy: Those are the precise words that Heller used in the specific context of explaining why Miller
Murphy: was consistent with the historical tradition of prohibitions on dangerous and unusual weapons.
Murphy: The court said what was different about machine guns was they were not typically possessed
Murphy: by law abiding citizens for lawful purposes. That is quite different from what we are talking
Murphy: about here today. Do we have data on what basis was that statement made? The Supreme Court’s
Murphy: statement? Yes. I assume it was made on the record that existed before, that they looked at
Murphy: themselves in terms of the historical record, but at this point, what we know is that at the time
Murphy: that machine guns started to be banned back then, there were only a few thousand of them that had
Murphy: been sold at all, which makes them exceedingly less common than anything we are talking about today.
Murphy: Again, I would point you to the record, in this very case, the state’s expert says they were not,
Murphy: they did not find a home with law abiding civilians. They instead principally found a home
Murphy: with gangsters and mobsters who were using them for criminal purposes. So it seems to be
Murphy: common ground here today, at this point, that the reason that those were the type of arms that
EASTERBROOK, Murphy: could… I hope you can see why it troubles me, because if we have a historical inquiry under
EASTERBROOK: Bruin, why could it matter? Why should it matter? What was in common use in the 1930s? Who owned
EASTERBROOK: guns in the 1930s? Or for that matter, who owns guns in the 2020s? It’s not historical. It’s a
EASTERBROOK: matter of current events, and normally we think that current events are for legislatures. History
EASTERBROOK, Murphy: is the domain of the Constitution. So as I understand what Bruin is teaching is that we
Murphy: take historical principles and apply them to modern-day facts. We take the historical principle
Murphy: that weapons that are in common use today are the types of arms protected by the Second Amendment.
EASTERBROOK, Murphy: The answer, you know, applying that… Where does that come from as a historical principle?
EASTERBROOK: That the Second Amendment protects whatever weapons are in common use whenever we choose to
EASTERBROOK, Murphy: ask that question. It comes from page 2143 of the Supreme Court’s decision in Bruin, where they
EASTERBROOK, Murphy: specifically confronted… Now, where does it come from? Right? The fact that somebody may say
EASTERBROOK: something that you like is not where it comes from. What part of our constitutional history
EASTERBROOK, Murphy: leads to that principle? It comes from looking at the historical tradition of what types of arms
EASTERBROOK, Murphy: were banned. It comes from looking at… Does it come from anything concrete in the historical
EASTERBROOK, Murphy: tradition? Yes, the laws that existed historically. We look at the laws, that’s what Bruin instructs
Murphy: us to do, is look at the types of laws that existed historically and ask what types of laws…
Murphy: Looking at those laws, what types of arms were permissible to ban? And what… There are very
Murphy: few restrictions. I mean, the state points to many regulations, but there are very few laws in this
Murphy: country’s history that prohibited particular types of arms. And when you look at those laws and look
Murphy: at them and try and ask, extrapolate from them, what is the basis that ties together the types
Murphy: of things that were prohibited? They were not arms that were in common use at the time. They were
Murphy: instead arms that were highly unusual in society at large and predominantly used for unlawful
Murphy: purposes. That is the historical tradition that’s drawn from looking at historical laws,
WOOD, Murphy: which is what courts are supposed to do in the wake of Bruin. So do you think the only thing
WOOD: that’s excluded are unlawful purposes? Because right now I’m struggling with what I understand to be
WOOD: your concession that the M16, for example, is not one of the arms that’s covered by the
WOOD: Second Amendment for the individual right to keep and bear. And that, more broadly speaking,
WOOD: our standing army, which is some 1.4 million people these days, and probably would have horrified
WOOD: James Madison and any number of other people who didn’t want a standing army, but we have one
WOOD: now, that there are certainly some weapons that in this country, Congress can, the Department
WOOD: of Defense can, whoever we want the actor to be, can reserve to the professional military,
WOOD: and maybe by extension to police departments or to keep out of the hands of ordinary citizens.
WOOD: Then there’s some other set of weapons. So I guess you’re saying unlawful purposes,
WOOD: but I think there’s another point here, which is that some weapons, while not unlawful per se,
WOOD: perfectly lawful for a member of the army to have his service weapon, but they are not for
WOOD: Second Amendment purposes, the kinds of things that individuals can have.
Murphy: So I think the question is whether they’re having unusual in society at large, and when the court
Murphy: said society at large, I take them to mean ordinary law-abiding citizens, not members of the military
WOOD, Murphy: or the police force. So let me ask you about this 24.4 million number then. I looked and it was very
WOOD: hard for me to see how it broke down. How many of those weapons are actually owned by law enforcement
WOOD: agencies? How many of those weapons are in the hands of criminal gangs? How many of those weapons
WOOD: are in the hands of people like Dr. Herrera, who has nothing that appears to suggest why he shouldn’t
WOOD, Murphy: have it? But how does that number break down? I can’t tell you precisely how that number breaks
Murphy: down. I will say that’s partly because we don’t believe that it is our burden to prove that something
Murphy: is not in common use or not typically used for lawful purposes today. I do think it’s important
WOOD, Murphy: to be clear about how we think methodologically all of this works in light of ruin. Oh, I agree with
WOOD: that. But I guess I’m reminded of the old lies, damn lies and statistics idea in that we can look
WOOD: at that number 24.4. Let’s maybe subtract some, call it 20 million since maybe some of them are
WOOD: these special uses. But then you look at other numbers and you see oh my gosh it’s only 1% of
WOOD: you know by the time you work through and that makes it seem not common and there’s no objective
Murphy: principle that tells us which way to think about commonality. Sure, I mean I’d say a couple of
Murphy: things in response to that. First, anytime anyone on the Supreme Court has talked about it, they’ve
WOOD, Murphy: talked about it in terms of numbers, just simple numbers of possession. But they’ve never faced
WOOD: this issue. They’ve always, it’s been conceded that there was common use. So when the court,
WOOD: the court tells us all the time you know if they weren’t thinking of an issue we really need to be
WOOD, Murphy: careful about how much we read into what they say. Well I do want to be clear that you know it
Murphy: wasn’t irrelevant in Heller or Bruin. I mean the question in Heller was whether a particular type
Murphy: of firearm may be possessed, a handgun. And the argument was made you don’t need to possess handgun
WOOD, Murphy: because you can possess long guns. But everybody agreed a handgun was in common use. Everybody
WOOD: agreed it was conceded. It says this in Bruin that handguns are in common use. So how you, how you
WOOD: derive the definition of common use from something that everybody agreed and therefore was untested
WOOD, Murphy: in the adversary system is hard. Sure and here’s part of why I think it really needs to be a focus
Murphy: on numbers of ownership. Because if you use basically any of the other metrics that the state
Murphy: has offered in its briefing, you’re probably going to end up having to say that revolvers aren’t
Murphy: covered, that non-semi-automatic rifles aren’t covered. I mean their statistic for saying that
Murphy: rifles aren’t covered is actually that these rifles that they’ve banned aren’t covered,
Murphy: is a statistic about all rifles. And I certainly don’t think the Supreme Court would accept the
Murphy: proposition that the right metric for commonality is one that excludes rifles and a revolver which
Murphy: is what Mr. Heller actually wanted to possess in Heller itself. And so you have to have a metric
Murphy: that is consistent with something that would protect the kinds of things that we think of
Murphy: as in ordinary use by lawful citizens for self-defense, meaning things that people keep
Murphy: in their home that they practice with to be ready for self-defense. And of course there’s
Murphy: variation among those numbers. But what we are talking about here, these types of rifles that
Murphy: the state has banned, they’re the second most popular type of firearm on the market after
Murphy: semi-automatic pistols. They’re three times more common than revolver sales. They’re twice as common
WOOD, Murphy: as shotgun sales, twice as common as non-semi-automatic. But that gets back to Judge Easterbrook’s point
WOOD: about the Tommy guns and the like. I think just because, so your feeling is whatever it is that’s
WOOD: popular, maybe grenades are going to be popular soon. That means that people have the right to
WOOD, Murphy: keep and bear grenades. You know, grenades seem to strike me as something that is more arguably
EASTERBROOK, Murphy: not a bearable arm in the sense of a firearm. No, grenade is an easily bearable arm. That’s the
EASTERBROOK: whole point. One of the problems that I at least have with your presentation is that it makes the
EASTERBROOK: constitutionality of a law depend on where it was enacted, when it was enacted, relative to sales.
EASTERBROOK: If there had been a statute in the 1950s when the AR-15 is invented, it would have been sustained
EASTERBROOK: on your analysis because by then, they are not in common use. But if the state legislature waits
EASTERBROOK: 20 years, then the statute can’t be sustained. All of that is totally extrinsic to either the
EASTERBROOK: language of the Constitution or the history of the Constitution. And I wonder how, if we have a
EASTERBROOK: historical test in Bruin, how that totally anachronistic approach can be the one required
EASTERBROOK, Murphy: by the Constitution? So I would say two things. First, I don’t think it is necessarily the case
Murphy: that simply because AR-15s weren’t common at the moment they came out, they could be prohibitive.
Murphy: There is a dangerous and unusual test. And while we feel very strongly that it’s a conjunctive test,
EASTERBROOK, Murphy: you need both things, that matters both, you have to be unusual, but also… But then you have to
EASTERBROOK: answer my machine gun question the other way. Because I’m quite sure that for the same reason
EASTERBROOK: AR-15s are owned by many law abiding people, Tommy guns would be owned by many law abiding people
EASTERBROOK: today. And therefore, the 1938 statute has to be unconstitutional. But you’re not willing to say
EASTERBROOK: that. I mean, it’s just not consistent with the historical record. And they were not common. So…
EASTERBROOK: Now, look, my proposition is counterfactual. It’s the same as what happens if the AR-15 is banned
EASTERBROOK: in 1957. It’s not common. But in litigation 20 years later, you would be saying law abiding people
EASTERBROOK: would commonly own it. And therefore, it has to be legal. And I’m now saying the very same thing
EASTERBROOK: about the Thompson submachine gun. Actually, you know, it’s a submachine gun. Maybe it wasn’t a real
EASTERBROOK: full machine gun. But you see the problem, I hope. But you’re just fixed on saying the machine gun
EASTERBROOK: can be banned. But something that is yay far from a machine gun can’t be banned. Because a lot of
EASTERBROOK, Murphy: them got into common hands before the ban. So to be clear, if I understand your hypothetical,
Murphy: I’m sorry if I’m misinterpreting. If, you know, laws changed such that machine guns, automatic
EASTERBROOK, Murphy: technology did become the common choice of the American people… No, no, you’re just not listening
EASTERBROOK: to my question. I’m asking Congress banned the machine gun in 1938. What I want to know is whether
EASTERBROOK: that is unconstitutional on the ground that today law abiding people would own machine guns for
EASTERBROOK, Murphy: proper use. The same proper use you described the AR-15 as having. And I think if a showing could
Murphy: be made that the American people, given the choice, would choose those, then I agree with you that the
WOOD, Murphy: answer might be different today than it was back in the 1930s. So here’s my issue. I’m not sure if
WOOD: this is what Judge Easterbrook is saying or not, but usually when we are asked to assess the
WOOD: constitutionality of a statute, whether it’s under the First Amendment or any part, your favorite part
WOOD: of the Constitution, these are enduring decisions. They’re not decisions that change based on the
WOOD: empirical basis of what has been happening lately. You know, it’s okay to say that child pornography
WOOD: is not within the speech protected by the First Amendment. It’s not about how popular child
WOOD: pornography is. It’s an understanding of what this law means and what its limitations are.
WOOD: And the same thing is true of the other parts of the Constitution. Indeed, there are people
WOOD: who’ve argued very strongly that the death penalty must be consistent with the Constitution because
WOOD: it’s mentioned a couple of times in the Constitution, even if mores have changed. And a lot of people
WOOD: now think the death penalty is immoral. The way to fix that, people say, is at the ballot box. You
WOOD: can get rid of it. But your interpretation means that constitutionality kind of winks on and off
WOOD: depending on how popular a weapon is at any given time. And that’s an unusual position to take.
WOOD, Murphy: I appreciate that, but I do want to be clear that Bruin actually specifically confronted
EASTERBROOK, Murphy: this question. And it confronted the possible… No, it didn’t. I mean, let me join Judge Wood
EASTERBROOK: in saying, Bruin confronted the question that was confronted in Bruin, which had nothing to do with
EASTERBROOK: arms like the AR15. That’s why both Justice Kavanaugh and Justice Alito filed separate opinions
EASTERBROOK: saying, Bruin decides only what it decides, what it’s presented. There wasn’t any question in Bruin
EASTERBROOK: about what is a protectable arm. It hasn’t been decided. Now, maybe we should decide it along
EASTERBROOK: similar grounds, but you can’t retreat and say, this has all been decided by Bruin. We’ve got a
EASTERBROOK: hard question, and we don’t think we can duck it by attributing it to a decision that didn’t face the
EASTERBROOK, Murphy: issue. I was not trying to suggest that Bruin decided the question before this court. I simply
Murphy: was… It addressed the question… Though your brief says that. It addresses the question you were
Murphy: asking me, which is a question about whether it matters if something was common now that wasn’t
Murphy: coming back then. And there is a passage in Bruin when the court specifically says, we accept the
Murphy: proposition that perhaps handguns were considered dangerous and unusual back in colonial days.
Murphy: And the court says, even if that were the case, that would not provide a justification for bands
Murphy: on carrying them today because they are unquestionably in common use today. That’s at page 2143 of
WOOD, Murphy: Bruin. I’ve read Bruin too. Believe me, I’ve been putting it under my pillow, but…
WOOD, Murphy: Yeah, I just want to… I appreciate that it is a little bit unusual. It is a little bit unusual to
WOOD, Murphy: have a protection that comes on and off, but it is more than a little bit unusual. It’s very troublesome
WOOD: to have a popularity contest determine a constitutional principle. And so that’s why I’ve
WOOD: been looking throughout these arguments for… What is the principle? Is the principle one that
WOOD: allows legislatures to distinguish between military uses and personal uses? Is the principle
WOOD: one that privileges the right to self-defense? Is the principle one… Can you lift it up?
WOOD: Is it bearable? And I assure you, you and I could carry a grenade around. It’s not that hard.
WOOD, Murphy: And I do want to be clear about the methodology, which is it’s a different question whether something
Murphy: is an arm that’s presumptively protected and then when you get to historical tradition.
Murphy: We think that the threshold question of whether something is presumptively protected
Murphy: is not that complicated and doesn’t need to get into an elaborate historical analysis.
Murphy: The Supreme Court said the definition, they used the word definition of the term arms is
WOOD, Murphy: bearable arms. But I’m telling you, you can say that, but then when you try to put some meat on
WOOD: the bones, it’s hard because a bearable arm certainly would include the M16. I agree. The
WOOD, Murphy: court at the same time said they’re outside the scope of the second one. But I don’t think the
Murphy: court was saying they aren’t arms. It was saying they are arms that may be banned consistent with
Murphy: our historical tradition of banning arms that are dangerous and unusual. So they passed the
Murphy: threshold test. That’s just a question of whether the second one is even implicated. They failed the
Murphy: court concluded at the second test because those kinds of bans are consistent with historical
WOOD, Murphy: tradition. And it seems to me quite extraordinary. And if the M16 is dangerous and unusual, it’s
WOOD, Murphy: certainly not any more unusual than the AR-15. Well, it’s absolutely. In society at large,
WOOD, Murphy: there’s 24 million AR-15s. There’s like a few hundred thousand. That’s just because the Pentagon
EASTERBROOK, WOOD: says you can’t have them. It doesn’t really… The problem, circularity is… And the whole
EASTERBROOK: fact that this is just ripped out of time. The M16 can’t be banned because the Pentagon won’t let
EASTERBROOK: civilians have it. But that just says that what can be banned depends on what has been banned.
EASTERBROOK: And as a matter of normal constitutional analysis, that just doesn’t work.
Murphy: So I think that the reason we look at things differently in this context is in part because,
Murphy: I mean, this is an amendment that’s passed to keep the government from taking things away from
EASTERBROOK, Murphy: people. And so when the government’s trying to take arms away from people that they already
EASTERBROOK, Murphy: press… Well, then you brought the wrong case because Illinois doesn’t take any arms away from
EASTERBROOK, Murphy: people. It bans sales of new AR-15s. Illinois is saying that there are arms that you no longer
EASTERBROOK, Murphy: can have and we are… There are arms you can no longer buy, right? We can at least state the
EASTERBROOK, Murphy: statute correctly. You can no longer acquire them. You can no longer acquire them. And even
WOOD, Murphy: people who can keep them can only keep and utilize them under much mirrorer circumstances than
WOOD, Murphy: our traditional… Only if they fill out this registration form, which is honestly, you know,
WOOD, Murphy: no worse than anything else that people fill out every day. Oh, but there’s still significant
WOOD, Murphy: restrictions on what they can do with them. They can’t utilize them like any other arms.
WOOD: Those restrictions didn’t look all that huge to me. You can use them for self-defense. You can
WOOD: take them to a shooting range. You can have them in your car when you’re traveling to and fro.
WOOD, Murphy: They’re all kinds of things you’ve been doing. I mean, you know all events. I mean,
Murphy: we have plaintiffs here who would like to acquire these and they cannot acquire them.
EASTERBROOK, Murphy: Acquire is a different… About, you know, things, an amendment that’s… But that’s
EASTERBROOK, Murphy: true of the M16 as well. You can’t acquire it. Of course it’s true. Even if it would be
EASTERBROOK, Murphy: really, really useful for self-defense. Sure, but I don’t think the fact that there’s some arm
EASTERBROOK, Murphy: out there that is unprotected by the Second Amendment is justification enough to say…
EASTERBROOK, Murphy: No, look, I hope you see why we’re having trouble. If you assume that the M16 is unprotected by the
EASTERBROOK: Second Amendment, then of course it’s not problematic to ban the M16. But why are you
EASTERBROOK: assuming it’s unprotected by the Second Amendment? Only because the military has so far kept them
EASTERBROOK: mostly out of civilian hands. And if the military had failed or had waited a decade,
EASTERBROOK: then they would be protected by the Second Amendment. And that as a matter of normal
EASTERBROOK: constitutional analysis would be, let’s just say, very unusual.
Murphy: I disagree that the only reason they can’t be protected is because the Pentagon has banned
Murphy: them. If you look at the history here, you know, semi-automatic technology predated,
EASTERBROOK, Murphy: automatic technology on the civilian market, it had been around for roughly 30 years before
EASTERBROOK: the Civilian market. Sure, but that’s the point is… The automatic technology was in use in the
EASTERBROOK, Murphy: Civil War. I mean, fully automatic firearms came around around the end of the 1800s, but they
Murphy: weren’t available to civilians. And the Second Amendment is about protecting the right of what
EASTERBROOK, Murphy: civilians can do. But whether they are available to civilians is the very question under review.
EASTERBROOK: I don’t think you’re understanding our problem, that your argument seems to be that if the government
EASTERBROOK: is successful in preventing weapons from coming into civilian hands, that is a self-fulfilling
EASTERBROOK: prophecy, that therefore they aren’t covered by the Second Amendment. But if the government
EASTERBROOK: waits before deciding whether weapons can come into civilian hands, then it becomes disabled
EASTERBROOK: from ever making that decision. That is a matter of normal constitutional analysis is pretty weird.
EASTERBROOK, Murphy: That just is not our argument. It is not our argument that the reason M16s may be able to be
Murphy: banned is because they were banned. It’s because when they came on the market, people did not
Murphy: choose… Law-abiding citizens did not choose… They never came on the private market. They did
Murphy: come on the private market. They came on the private market in 1925 and over the course of the
Murphy: following 10 years, instead of a bunch of law-abiding civilians going and buying them, 25 states in
Murphy: the federal government banned them. People reacted by saying these are not the kinds of arms that we
WOOD, Murphy: want for self-defense. But you would have been bringing a lawsuit saying they shouldn’t. This,
WOOD: of course, is during a period when the Second Amendment is understood very differently from the
WOOD, Murphy: way it’s now understood. I mean, not necessarily. I guess if I had some client who wanted them,
Murphy: but most people didn’t. They were happy with the semi-automatic technology that had been on the
Murphy: market for 30 years and isn’t radically different from anything we’re talking about today. People
Murphy: were happy to continue arming themselves with semi-automatic pistols, with essentially semi-automatic
Murphy: revolvers and rifles and shotguns and all of those things. They didn’t clamor to go get this
Murphy: technology. There was instead a groundswell across the country of people saying, this is not what we
Murphy: want for self-defense. So I don’t think you can say that this is just 100 percent. The Pentagon
Murphy: said you can’t have them and that’s the end of it. There was actual history surrounding it and it
Murphy: was that law-abiding citizens had the option and said, no, thank you. And I think that goes to show
Murphy: that it’s not as if anything out there that’s legal will necessarily be something millions and
Murphy: millions of Americans go and purchase. Americans make choices about what to purchase. It just so
Murphy: happens that what the state has decided to try to ban here is the single most popular thing that
Murphy: people are purchasing these days for self-defense. And I don’t think that when you’re doing that,
Murphy: I mean it burst the idea that a law prohibiting the second most popular type of arm in this country
Murphy: would not even implicate the Second Amendment, but have no, no, it doesn’t even need to be
Murphy: analyzed under history and tradition. I think the Supreme Court would find that proposition
WOOD, Murphy: absolutely radical. Well, you know, can I also say, I just want to put some perspective here.
WOOD: There’s absolutely nothing in the Illinois law or any of the other laws that are before us
WOOD: that would prevent a future legislature in Illinois to allow the purchase of these weapons.
WOOD: And other states have more liberal policies about what, so in other words, there’s a democratic
WOOD: process. There’s a legislative process at issue here. And what we’re exploring is what, what are
WOOD: the constraints on that process? You know, has Illinois gone too far or have the various,
WOOD: you know, the county and the two municipalities, have they gone too far?
WOOD: But nobody is preventing anybody from using the legislative process.
Murphy: Sure, but I mean you could say that about pretty much any constitutional right. You can always go
WOOD, Murphy: and change this. Well, and look at Dobbs. Look at Dobbs. Dobbs says sometimes the right thing to do
WOOD: is to go to the legislative process, go to the states, see what they want.
WOOD, Murphy: Dobbs certainly does, but the Supreme Court’s direction that they’ve been giving loud and
Murphy: clear in the context of the Second Amendment is that legislatures are overreaching and that
Murphy: the Second Amendment protects a fundamental individual right and that the legislature doesn’t
Murphy: get to just come in and say, you know what, these arms, they strike us as too dangerous for the
Murphy: average law abiding citizen, even though millions of law abiding citizens have made a different
Murphy: judgment, we know better. That’s not the kind of judgment that is consistent with historical
Murphy: tradition. And ultimately, you know, what ruined the one thing it makes absolutely clear is you’ve
WOOD, Murphy: got to ground all of this in historical tradition and the state just has not shown, even in their
WOOD, Murphy: own words. I mean history is so malleable and I mean the state would, I imagine they’re going
WOOD: to stand up and say yes we did, yes we did and which historical analogs are the best ones, which
WOOD, Murphy: are even legitimate ones, is very much under debate among the parties in this case. It certainly is,
Murphy: but what the state has been careful to continuously say in its briefs and I heard them say it again
Murphy: here today, is that they’ve demonstrated a history of, quote, regulation. Okay, I will grant that
Murphy: there’s a history of regulation of all sorts of types of firearms. That is not the same thing as a
Murphy: history of prohibiting particular types of arms on the theory that they are too dangerous for the
WOOD, Murphy: American people. Except that, I mean we don’t need to belabor this because we’ve covered it, but
WOOD, Murphy: there are arms that are kept out of civilian hands and those are banned. Sure, but for civilians.
Murphy: But the justification, if you look at the very few and far between laws, that banned
Murphy: particular types of arms, I mean most of the ones they come forward from the 1800s,
Murphy: are the exact same laws that Bruin or Heller or both consider and said these are outliers that are
EASTERBROOK, Murphy: not part of American prohibition. Why do you describe it as few and far between? I mean take the
EASTERBROOK: grenade. The grenade is a very portable, very effective arm. It’s banned. I assume that you
EASTERBROOK: think that ban is lawful. Stinger missiles, bazookas, it’s very easy to rattle off lots
EASTERBROOK, Murphy: of banned arms. So why do you describe them as few and far between? I suppose I should employ
EASTERBROOK, Murphy: the caveat of arms that are commonly owned by law abiding. Yeah, but we’re then back to this
EASTERBROOK: circularity. Sure. Grenades aren’t commonly owned by law abiding citizens in part because
EASTERBROOK, Murphy: they’re completely illegal. But once the state is banning things that are commonly owned,
Murphy: I think they need to show it today. Right, and that’s the anachronism built in to the argument,
EASTERBROOK: that if the state waits 20 years before banning something, it can’t. But if it bans them right
EASTERBROOK, Murphy: at the beginning, it can. And that’s, well, we’ve been through this. Yes, appreciate the
EASTERBROOK, Murphy: frustration. It’s okay. The anachronism built in. Thank you, Ms. Murphy. Thank you.
EASTERBROOK, Murphy: Mr. Mag.
EASTERBROOK: Thank you, Mr. Brown.
Maag: Please the court, counsel, comments from Mag, and the lately plaintiffs.
Maag: Perhaps I want to start out by saying we’re not here talking about Stinger missiles,
Maag: bazookas, or the like. Frankly, I’m aware of no law outlawing them. National
EASTERBROOK, Maag: firearms act might tax. There is, in fact, a specific federal statute about grenades.
EASTERBROOK: National firearms also includes body armor and a bunch of other things.
Maag: A bazooka, they’re on the market. They’re taxed and registered as our pre 1986 machine guns,
Maag: of which there are about 200,000 civilian hands right now. But we’re not here talking about
Maag: rocket launchers and grenade launchers. In fact, machine guns at the federal level weren’t banned
Maag: until 1986. They were tax and registered starting in 1934 by the federal government, but remained
Maag: on the market. The reason that there’s only 200,000 machine guns and civilian hands is they’re
Maag: expensive. And they were regulated, not banned. What protects the AR 15 and similar firearms,
Maag: aside from the fact that they are the single most popular firearms in the United States,
Maag: is that they are also the lineal descendants of the armed, the Charleville Musket, the Brown Bass
Maag, WOOD: used at the time of the adoption of the Second Amendment. So I find, you make that argument,
WOOD: I find it less helpful because it just puts too much in the same pot, basically. There are
WOOD: quite important differences between the AR 15 that you could buy if you went out and bought it today,
WOOD: and the weaponry that was used at the time of the Revolutionary War. It weakens your argument
Maag, WOOD: to try to save it the same thing. I didn’t say the same thing. I said the lineal descendants,
Maag, WOOD: such as the difference between the Gutenberg press. But if they aren’t the same thing, then why? Yes,
WOOD: okay, the Gutenberg press is different from my iPad. I get that. But why is it helpful to say that
Maag, WOOD: it’s the lineal descendant? It’s different. It’s unbelievably dangerous. It is not unbelievably
Maag, WOOD: dangerous any more than the bayonet on the end of the British muskets. Again, that zooms up to such
WOOD: a high degree of generality. Can they both kill? Sure. Are they both designed for killing? Sure.
WOOD: But they don’t kill in the same way, in the same number of seconds, in the same manner.
Maag, WOOD: But the progression of technology from the adoption of the Second Amendment has been the
Maag: progression of improvements in range, in power, speed of firing. I mean, the argument that the
Maag: state is making about AR 15s and the like could be applied to bold action rifles in the First
Maag: World War. They have an immense rate of fire compared to the Charleville musket.
Maag: But I don’t think even this court would blink at saying that they’re protected by the Second
Maag, WOOD: Amendment. So can I ask, it seems to me fundamentally, your position is that with the
WOOD: addition of the Second Amendment to the Constitution in 1791, and then it’s later in
WOOD: corporation in 1868, the legislative authorities of this country at any level were across the
Maag, WOOD: board simply disabled from banning or regulating guns, firearms. Banning rifles, pistols, shotguns
Maag: of the type typically used at the adoption of the Second Amendment. Yes, regulating, it depends
Maag, WOOD: on how far the regulation goes. So if you can somehow trace a lineal descendant from something
WOOD: that was around 1791 to a modern weapon, no matter how many improvements, as you say,
WOOD: in accuracy range, et cetera, there’s just no power in Congress, no power in the state
Maag, WOOD: legislature or city council to ban that weapon. I agree that the government does not have the
EASTERBROOK, Maag: power to ban the great, great grandchildren of the brown bats musket. And doesn’t that
EASTERBROOK, Maag: equally apply to Stinger missiles? Interesting. Stinger missile is not a descendant of a rifle
EASTERBROOK, Maag: pistol shotgun used at the time. It was a descendant of an arm. I mean, there’s no
EASTERBROOK: phrase in the Constitution about rifle pistol or shotgun. No, I mean, it’s a descendant of the
EASTERBROOK, Maag: kind of missile invented in China in about the eighth century, around for a long time.
Maag: The concrete rocket used by the British at the time of the revolution, I don’t know if that
EASTERBROOK, Maag: would be protected. And therefore, in your view, is the Stinger missile protected by the Second
EASTERBROOK, Maag: Amendment? Probably not, because it would be dangerous and unusual.
Maag: Unusual compared to what? Compared to anything, even in the military,
Maag: they don’t issue man pads, man portable air defense systems like the Stinger missile
Maag: to the average infantryman. Oh, the average infantryman.
Maag: I mean, it’s like nuclear weapons. Nuclear weapons, even in a military context,
Maag: are rare and unusual. There might be thousands of them across the nation, but they’re certainly
Maag: not issued and used, at least not used since World War II.
Maag: And I would note that Centano made clear 200,000, at least in the concurrence in Centano by
Maag: Justice Alito, that 200,000 stun guns existed per the record in that case in the United States
Maag: at that time. If 200,000 is sufficient for uncommon use, we’re well beyond that.
Maag: I mean, we’re talking about tens of millions.
Maag: So I would also like to point out that the issue is not just used for self-defense.
Maag: It’s used traditionally for lawful purposes, including self-defense.
Maag: Other lawful purpose target competitions, hunting to the extent necessary, and the like,
Maag: are also traditionally lawful purposes. And in closing, while I still have a little time,
Maag: I would like that we’re not here just talking about AR-15s and Big Bet assault weapons.
Maag: You take a little .22 pistol, pocket pistol with a threaded barrel,
Maag: kind of like James Bond carried in the original Dr. No books. That is banned under this act.
Maag: Pocket pistols with threaded barrels. These are not dangerous, unusual new firearms.
Maag: They are long existing firearm, linear descendants of what existed at the time of the revolution.
Maag: They are protective. Thank you, Mr. Mag. Thank you, your honors.
Mr. Dickey.
Dickey: Good morning, your honors, and may it please the court.
Dickey: Gilbert Dickey on behalf of Appellant, Dr. Herrera. Dr. Herrera’s challenge is principally about
Dickey: whether he can keep his common rifle and handgun magazines in his home. Bruins text and history
Dickey: framework confirms that he can. We agree with Ms. Murphy’s arguments about common use,
Dickey: but would like to highlight three features unique to Dr. Herrera’s challenge.
Dickey: First, the history speaks with clarity to Dr. Herrera’s challenge to blanket fans in the
Dickey: home. Under the militia acts, citizens were expected to keep common weapons that could be
WOOD, Dickey: used for lawful civilian purposes and common defense in the home. See, see, with that argument,
WOOD: and it’s always an interesting argument, it relates back to the militia clause, actually, but
WOOD: what I am having trouble with, again, is my is my sorting question, because
WOOD: people could certainly keep an M16 in their home, too, and it would be useful if the militia were
WOOD: called up, and if they were training periodically in appropriate ways, they would be ready to go,
WOOD: you know, for for the militia. So I just don’t know why that helps us make the decision that
WOOD, Dickey: we’re trying to make today. Yes, Judge Wood, I so when you look at the militia acts, as you say,
WOOD, Dickey: civilians were expected to keep weapons that would be useful for certain types of weapons,
WOOD: and they could lose their weapons, too, if they poached or if they, in some fashion, misused.
Dickey: Yes, and in our case, we point to evidence about the kinds of weapons that those were,
Dickey: those were the weapons that were in common use for both, for lawful civilian purposes,
Dickey: that would also be useful for common defense. And here we actually have record evidence in
Dickey: some of the declarations in our case, that the M16 and fully automatic functionality,
Dickey: which is the distinction between the M16 and AR-15, is not useful for lawful civilian purposes.
Dickey: It would be it would be useful for militia purposes, but Heller makes clear that alone is not enough.
WOOD: It just strikes me as ipsy-dixit, you know, we say it’s not useful for the M16 for civilian purposes,
WOOD: but if somebody was frightened and they thought an intruder was coming to their home,
WOOD: rather than have to sit there and aim at the intruder, maybe if you could just spray,
WOOD: you know, weaponry across the area, you’d be even more assured of protecting your home.
EASTERBROOK, Dickey: I certainly understand the challenge you’re facing, Judge Wood, and I think-
EASTERBROOK, Dickey: And of course, that’s related to the bump stock question, where bump stocks are used to make
EASTERBROOK: essentially fully operate, fully automatic application, which is now, I assume, about to be
EASTERBROOK: reviewed by the Supreme Court, right? If a bump stock is protected by the Second Amendment,
EASTERBROOK: why not an M16 for any other machine gun?
Dickey: Your Honor, our argument is not.
EASTERBROOK: I know your argument is not about bump stocks, but we live in a world where the Fifth Circuit has
EASTERBROOK: just held that bump stocks cannot be outlawed, and where the Solicitor General has asked the
EASTERBROOK: Supreme Court to review that. Anything we say today will be read against that background, too.
EASTERBROOK: So I’m asking whether, in your view, bump stocks and the M16 are protected by the
EASTERBROOK: Second Amendment precisely because they can be used to spray bullets.
Dickey: So our view distinguishes between semi-automatic rifles, like the AR-15 that Dr. Herrera would
Dickey: like to keep in his home, and fully automatic functionality. And that is exactly because
Dickey: fully automatic functionality is designed to, as you mentioned, spray fire, which is useful in
EASTERBROOK, Dickey: the malicious setting. And it’s useful for somebody who is, say, 75 years old, not very
EASTERBROOK: familiar with firearms, confronted by an intruder at home, and would be much more likely to be able
EASTERBROOK: to protect himself from the intruder if he could just pull the trigger once and move the gun around.
Dickey: Your Honor, I don’t think that’s the record in our case.
EASTERBROOK, Dickey: I’m not asking about the record in our case. I’m asking about a feature of an automatic weapon.
EASTERBROOK: Right? That’s how automatic weapons work. It’s why the military likes them. It’s why a 65-year-old
EASTERBROOK: or 80-year-old arthritic homeowner may think it would be terribly important to be able to defend
EASTERBROOK: himself that way. I understand you don’t want to answer this question. That’s exactly why we do
EASTERBROOK, Dickey: want you to answer that question. Right. What I’m trying to point out is we do not believe that
Dickey: that’s the kind of lawful civilian use that would be expected under the Militia Act,
Dickey: exactly because, as we’ve shown, we think it’s useful for suppressive fire, but not for self-defense,
EASTERBROOK, Dickey: whereas the semi-automatic… Why? Look, I just told you how it’s useful for self-defense.
EASTERBROOK: Somebody who is not a gun expert, who might have arthritis, is trying to defend himself.
EASTERBROOK: The ability to pull the trigger once and move the gun around is very effective for self-defense,
EASTERBROOK, Dickey: one might think. Right? Certainly one might think that. I think the distinction we’re trying to
Dickey: draw is… I hate to keep going back to the record, but I think what our expert declaration shows is
Dickey: it’s not a useful tool for actually hitting your target and effectively defending yourself
EASTERBROOK, Dickey: and semi-automatic… Not a useful tool for hitting your target. If I recall the data,
EASTERBROOK: if you think about the military use of the M16, what is one bullet in more than 100 hits its target,
EASTERBROOK: but the military thinks they’re useful, you think the military is just wrong in thinking that
EASTERBROOK, Dickey: these kinds of weapons are useful. We’ve put in evidence from people highly experienced in military
Dickey: operations that the use for it in the military setting is predominantly for suppressive fire.
EASTERBROOK: And that’s the kind of question I was asking. You’re a homeowner. You’re worried about the intruder.
You just want to make sure that he gets hit somehow without your having to aim the rifle at him.
Dickey: Right. I think that’s different from what I’m saying. Suppressive fire is not…
EASTERBROOK, Dickey: I know it’s different from what you’re saying, but why is it a constitutional rule?
EASTERBROOK: Right? Where why is it that the Constitution prohibits, allows a state to prohibit that kind
EASTERBROOK: of use by a law-abiding person to defend his house and does not allow the state to prohibit
EASTERBROOK: a similar use by a very similar weapon? Trying to see how the Constitution draws that line has
EASTERBROOK, Dickey: been very difficult, for me at least. I understand. I think our test draws, drawing from the
Dickey: militia acts draws two distinctions. The guns and we think at a minimum you cannot show a history
Dickey: and tradition of banning weapons in the home that were useful both for lawful civilian purposes
Dickey: and in common defense. We think the AR-15 is the prototypical weapon that would fit in that. And
Dickey: I think here, I just want to turn briefly if I tend to, I think it’s important to understand who
Dickey: the militia was referring to went in these militia acts. Pressor, which we’ve cited in our brief,
Dickey: makes very clear that the militia refers to all able-bodied citizens capable of rendering aid
WOOD, Dickey: in the event of an emergency. It makes very clear. Able-bodied white non-native citizens.
WOOD, Dickey: I don’t believe that’s what Pressor says. Certainly some of the militia acts said that.
WOOD, Dickey: In 1791, you think they were arming people of other races or the indigenous folks here?
WOOD, Dickey: We don’t dispute that there would be other constitutional problems with the militia acts.
Dickey: We point to Pressor, which we think is consistent with what McDonald and Heller say about the
Dickey: militia, where it clearly defines it as able-bodied citizens and not some state-regulated entity.
Dickey: And in fact, if you look to the militia clauses, it’s very hard to imagine it being
Dickey: a state-regulated entity because it’s actually the United States government that is responsible
Dickey: for organizing the militia. And it’s the only authority capable of calling forth the militia.
Dickey: The state’s authority is to appoint the officers and to see to training according to the instructions
Dickey: of the United States. So we’re not talking about some state-regulated entity. The militia was a
Dickey: pre-existing body of people before the Constitution, composed of all able-bodied citizens.
Dickey: And so we think these acts show that common weapons that were useful for lawful civilian
Dickey: purposes like the AR-15, and that’s not just limited to self-defense, clearly, but also target
Dickey: shooting and the like, were protected by the Second Amendment. And if you look to Heller,
Dickey: where it discusses, there’s been some discussion of sort of a like the M-16 test.
Dickey: What Heller is actually saying is the mere fact that something might be useful for the militia
Dickey: is not enough. It’s actually explaining why despite the usefulness for militia purposes.
Dickey: So the militia purpose was cutting the other way there, but it was explaining why when a weapon
Dickey: is highly unusual like the M-16, that’s not enough just because it would be helpful for militia
Dickey: purposes. Just briefly, I want to talk about the district court’s irreparable harm finding.
Dickey: Ezell confirms that Dr. Herrera is suffering irreparable harm. He’s currently prohibited from
Dickey: keeping his AR-15 in his home and training with it. Those are the exact harms that were at issue
Dickey: in Ezell. So we think that was clearly wrong, was a legal error. If there’s nothing further,
EASTERBROOK, Dickey: we would ask for the court reverse. Thank you, Mr. Dickey. Ms. Hunger, anything further?
Hunger: Yes, Your Honor, just a few very brief points. Going back to Your Honor’s questions about
Hunger: first principles, our view is that our standard, both of the plain text and the historical tradition
Hunger: step or whatever we would like to call it post-fruin, is consistent with these first
Hunger: principles because on the one hand you’re looking at whether or not an arm is useful for self-defense
Hunger: or on the other whether it is typically used or best used or most suitable for the military
Hunger: or criminal uses. And I think that is consistent both in the plain text and also looking at the
Hunger: historical tradition. How does the plain text answer that? Well, in terms of what an arm means,
Hunger: our view is that there’s nothing in the plain text that tells you what an arm means. That’s
Hunger: correct. So let’s stop with this plain text stuff. Okay, my apologies, Your Honor. In terms of
Hunger: first principles, looking at categorization of self-defense on the one hand and military and
Hunger: criminal use on the other hand under kind of a history and tradition and as Bruin indicated,
Hunger: you know, would govern here. I also would like to note on a different topic, you know,
Hunger: plaintiffs discussed a lot, you know, these firearms are available, they have also been
Hunger: available, but another piece of this story is the marketing techniques and here as is clear in the
EASTERBROOK, Hunger: record. I was having a lot of trouble with your adversaries about constitutional history.
EASTERBROOK: But I must say, I don’t see how marketing techniques have anything to do with the second
EASTERBROOK, Hunger: amendment. I don’t think it’s conceivable. We agree. Yes. Yes, I was just. Thank you.
Hunger: You know, and then finally, in terms of a few places in the record where, you know,
Hunger: you can look to see why the weapons of the 1950s are different from the semi-automatic weapons.
Hunger: I would look to exhibit B of the Andrew Declaration, which is kind of a contemporaneous
WOOD, Hunger: report, the Urgillitis Declaration and the Hargarten Declaration. So are we looking at this to
WOOD: shed some light on dangers and unusual or are we looking at this for some other reason?
Hunger: That would be in response to this notion that the semi-automatic weapons of the 1950s are the same
Hunger: as the semi-automatic weapons of kind of the late 19th century and the early 20th century.
EASTERBROOK, Hunger: In our view, is that those are not the same and that is merely our record support.
EASTERBROOK: I must say, I don’t understand that either. Do you think the famous Winchester repeating
EASTERBROOK, Hunger: rifle is protected by the Second Amendment? In terms of the text or the tradition or just the
EASTERBROOK, Hunger: overall? I’m asking about the bottom line. The text doesn’t tell us what an arm is, right?
EASTERBROOK: And I want you to think about the Winchester repeating rifle, right? Not any kind of muzzle
EASTERBROOK: loading rifle as of 1791, right? But the rifle that made the West, the one where you could crank
EASTERBROOK: the pump and shoot again much more quickly than anything beforehand. And it would have a magazine
EASTERBROOK: of some number of rounds. It was not, it was in a sense like its predecessors, but in a sense,
EASTERBROOK: it was the AR-15 of the day. Was it protected by the Second Amendment? Is it protected by the
EASTERBROOK, Hunger: Second Amendment today? Our view is that certain restrictions may have been lawful. For example,
Hunger: on the concealed carry of those weapons, which I believe were in existence in the 19th century,
Hunger: which may be different than a complete ban on those weapons, which, you know, may not be protected
Hunger: for that purpose. That sounds pretty fuzzy. Is that your final answer? Well, I, you know,
Hunger: the Supreme Court has said that the restrictions on concealed carry of revolvers and rifles of those
Hunger: types are constitutional. And so I, you know, it does depend on, I think, what the restriction
Hunger: is. So that is my final answer. I suppose finally, and just noting kind of this page 2143 that my
Hunger: opponents spent a good amount of time on, which I’ve also read quite extensively. And, you know,
Hunger: our view of that paragraph is, yes, the Supreme Court did use the word common use. It was in
Hunger: distinguishing, I believe, one or two regulations in its entire historical analysis that was not
Hunger: establishing the test. And if your honors have no further questions, we ask that this court affirm
EASTERBROOK, Hunger: and be this in Herrera and reverse in Barnett. Thank you. Thank you, Ms. Hunger. Ms. Scheller,
EASTERBROOK, Scheller: anything further? Thank you, Your Honor. Nothing further on behalf of the county
EASTERBROOK, Scheller: defendants unless the court has specific questions for us. I see none. So thank you. Thank you.
EASTERBROOK: Thanks to all advocates. This is an extremely difficult problem. And we will take the case
EASTERBROOK: under review. The court is in recess.