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Highland Park's Assault Weapon Ban Does Not Violate 2nd Amend

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By Casey C. Sullivan, Esq. on April 29, 2015 3:53 PM

Highland Park's assault weapon ban does not violate the Second Amendment, the Seventh Circuit ruled on Monday. The ritzy Chicagoland suburb had banned the weapons in 2013, in part to evade a state law which would have prevented future legislation on such bans. The issue was so contentious at the time that residents skipped the Stanley Cup finals to debate the issue.

Judge Easterbrook wrote the opinion, with Judge Williams joining and Manion dissenting. The two justice majority asserted that Supreme Court precedent should not be read like legislation, governing the totality of Second Amendment rights, and that many questions regarding weapons, crime and self-defense are best left to the political process.

Seventh Circuit Moves Away From Heller

In 2008, the Supreme Court invalidated a local ban on handguns in the case of D.C. v. Heller. That case asserted an individual right to bear arms for the purposes of self defense, but contained cautionary language regarding the extent of its applicability.

In responding to the challenge to Highland Park's ban, Easterbrook and Williams refused to be bound solely by the language of Heller. They noted the difficulty of determining if a weapon was common or dangerous, or if the prohibition had been longstanding -- all criteria examined in Heller.

Those sorts of empirical issues are better reserved for the legislature than the judiciary, the court wrote. Heller should not be read as a statute, governing what arms qualify as common or dangerous, but simply an explanation of the Supreme Court's disposition.

As the court wrote, "The best way to evaluate the relation among assault weapons, crime, and self-defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court's opinions."

Seventh Proposes a Three Part Test

The Seventh decided that regulations should be assessed based on whether the banned weapons were common when the Second Amendment was ratified, whether the weapons are connected to "a well regulated militia," and whether law-abiding citizens would use them for self-defense.

The first question is simple. No, the assault weapons banned by Highland Park did not exist in 1791. As to the second, assault weapons are used by military and police, indicating that they might be helpful to a state militia, should one ever need to be called up. On the third question, the court found that assault weapons can be used for self-defense, but banning them does not foreclose other means of armed self-defense.

Did the Seventh Bring Miller Back From the Grave?

In his dissent, Judge Manion savaged the majority for its treatment of United States v. Miller, the 1930s case tying Second Amendment rights to one's participation in a militia. Heller, Manion argued, rejected that view, finding an individual right to keep and bear arms. Yet, the majority "comes not to bury Miller but to exhume it." The three part test the majority applies, Manion argues, applies factors disclaimed under Heller. Manion proposes an alternative standard, examining the commonality of the weapon, whether it is used for a Second Amendment right, and whether the regulation of it withstands "a standard of scrutiny."

The case is bound to be significant as legislatures and courts continue to struggle over Second Amendment protections and firearm regulations.

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