Originally Posted by
Anti Federalist
7th Circuit: AR-15s Not Protected by Second Amendment
https://www.breitbart.com/2nd-amendm...ond-amendment/
AWR HAWKINS 4 Nov 2023
On Friday, a three-judge panel of the United States Court of Appeals for the Seventh Circuit overturned an injunction against Illinois’ “assault weapons” ban, deciding that AR-15s are not protected by the Second Amendment.
The preliminary injunction was issued in Barnett v. Raoul by U.S. District Judge Stephen P. McGlynn, a Donald Trump appointee.
McGlynn’s decision was appealed to the Seventh Circuit, where a three-judge panel decided 2 to 1 against the injunction.
The three judges were Ronald Reagan appointee Frank Easterbook, Bill Clinton appointee Diane P. Wood, and Donald Trump appointee Michael P. Brennan.
Easterbrook and Wood constituted the panel majority in overturning the injunction. They noted that Heller (2008) held, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.”
They went on to note that in Heller, the Supreme Court of the United States found that machine guns were not protected under the Second Amendment because they were not “bearable” arms, and that is “because they can be dedicated exclusively to military use.”
Easterbrook and Wood then focused on similarities they found between AR-15s and M16s, the latter of which can be fired in full-auto or three-round burst modes. They wrote:
The similarity between the AR-15 and the M16 only increases when we take into account how easy it is to modify the AR-15 by adding a “bump stock” (as the shooter in the 2017 Las Vegas event had done) or auto-sear to it, thereby making it, in essence, a fully automatic weapon. In a decision addressing a ban on bump stocks enacted by the Maryland legislature, another federal court found that bump-stock devices enable “rates of fire between 400 to 800 rounds per minute.”
They also noted that both guns use the same ammunition and “deliver the same kinetic energy.”
Judge Brennan dissented from the majority decision, stressing that the Illinois “assault weapons” ban fails if tested by Bruen (2022) because the ban has no historical precedent in American tradition.
Brennan wrote: “Because the banned firearms and magazines warrant constitutional protection, and the government parties have failed to meet their burden to show that their bans are part of the history and tradition of firearms regulation, preliminary injunctions are justified against enforcement of the challenged laws.”
The case is Barnett v. Raoul, No. 23-1353 in the United States Court of Appeals for the Seventh Circuit.
So....this is a poorly written decision by the 7th Circuit. What the 7th Circuit said about machine guns an "bearable arms."
554 U.S. at 581–82 (first emphasis and ellipsis added, and
“hereinafter” parentheticals omitted). Summarizing, the
Court said that “the Second Amendment extends, prima facie,
to all instruments that constitute bearable arms.” Id. at 582.
But what exactly falls within the scope of “bearable”
Arms? Not machineguns, the Court said, because they can be
dedicated exclusively to military use. See id. at 624. Yet a normal
person can certainly pick up and carry a machinegun, or
for that matter the portable nuclear weapons we mentioned at
the outset. “Bearable” thus must mean more than “transportable”
or “capable of being held.” See id. at 627 (discussing
“weapons that are most useful in military service—M16 rifles
and the like,” which “may be banned”)
The Court’s comments about the role of the militia shed
light on the scope of the term “Arms.” It explained that “[t]he
traditional militia was formed from a pool of men bringing
arms ‘in common use at the time’ for lawful purposes like selfdefense.”
Id. at 624. It then concluded that “the Second Amendment does
not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes, such
as short-barreled shotguns. That accords with the historical
understanding of the scope of the right.” Id. at 625 (emphasis
added). We take from this that the definition of “bearable
Arms” extends only to weapons in common use for a lawful
purpose. That lawful purpose, as we have said several times,
is at its core the right to individual self-defense
What Heller actually said about machineguns.
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.[Footnote 25]
And later what Heller said about "bearable arms."
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
So in Heller, in a bit of dicta, SCOTUS decided to come up with an argument as to why machineguns could still be banned even though individual soldiers can carry or "bear" them and they are useful for military service, unlike sawed off shotguns. (And yes I know that it's debatable that sawed off shotguns are not useful for the military). It's not that machineguns are not "bearable" but they are not "in common use." The "bearable" language was used to thwart the liberal argument that the 2nd Amendment only applied to muskets. The 7th Circuit cannot claim AR15s aren't in "common use" because...well they are. So the claim is that they aren't protected by the 2nd Amendment because they aren't bearable because they aren't "useful for self defense" which is a totally asinine argument.
Anyhow, the Heller dicta about bearable arms and muskets made me thing of this Key and Peele sketch.
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