Judge Easterbrook Dares The Justices On The 2nd Amendment

April 29th, 2015

Judge Easterbrook dropped the ball in his opinion upholding the City of Highland Park’s ban on so-called “assault weapons.” He read Heller and McDonald so narrowly as to disregard them, and at the end dared the Justices to tell him that he is wrong.

Easterbrook’s main argument focuses on the “historical tradition.” The 2nd Amendment was ratified in 1791. Heller was decided in 2008. In the intervening two centuries, for all intents and purposes, there was no judicially enforced 2nd Amendment right in the federal courts. (I am putting aside how state courts interpreted state constitutional amendments). Take for example everyone’s favorite, the machine gun. Easterbrook notes that states did not regulate them until 1927, and the federal government did not tax them until 1934 with the National Firearms Act. (It was the violation of the latter statute that snared the defendant in United States v. Miller). So between 1934 and 2008, there was no meaningful limit on how the government could regulate arms. Consider a counterfactual. If Miller came out the other way, and the National Firearms Act was invalidated, machine guns very well would be in “common use.” (As a practical matter, machine guns are not very practical so this is unlikely).

But Easterbrook takes this in a different direction.

How weapons are sorted between private and military uses has changed over time. From the perspective of 2008, when Heller was decided, laws dating to the 1920s may seem to belong to a “historical tradition” of regulation. But they were enacted more than 130 years after the states ratified the Second Amendment. Why should regulations enacted 130 years after the Second Amendment’s adoption (and nearly 60 years after the Fourteenth’s) have more validity than those enacted another 90 years later?

What is the correct lineage for the history? The century between the ratification of the 2nd Amendment, or the century preceding Heller? Easterbrook asks why a law enacted in the 1930s should be any stronger than a law enacted in 2013 in terms of tradition. Easterbrook suggests that time does not create an “easement” across the Second Amendment.

Nothing in Heller suggests that a constitutional challenge to bans on private possession of machine guns brought during the 1930s, soon after their enactment, should have succeeded—that the passage of time creates an easement across the Second Amendment. See United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc). If Highland Park’s ordinance stays on the books for a few years, that shouldn’t make it either more or less open to chal‐ lenge under the Second Amendment.

Easterbrook rejects the argument that you should look to how common a weapon is at the time of the litigation.

And relying on how common a weapon is at the time of litigation would be circular to boot. Machine guns aren’t commonly owned for lawful purposes today because they are illegal; semi‐automatic weapons with large‐capacity magazines are owned more commonly because, until recent‐ ly (in some jurisdictions), they have been legal. Yet it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning that it, so that it isn’t commonly owned. A law’s existence can’t be the source of its own constitutional validity.

And what makes a weapon in “common” use?

Yet High‐ land Park concedes uncertainty whether the banned weap‐ ons are commonly owned; if they are (or were before it en‐ acted the ordinance), then they are not unusual. The record shows that perhaps 9% of the nation’s firearms owners have assault weapons, but what line separates “common” from “uncommon” ownership is something the Court did not say.

And what makes a weapon “dangerous”? Not how often it is used for murder, but how dangerous it is to other kinds of weapons.

The large fraction of murders committed by handguns may reflect the fact that they are much more numerous than assault weapons. What should matter to the “danger” question is how deadly a single weapon of one kind is compared with a single weapon of a different kind.

As he did in Skoien, Easterbrook seeks to read Heller as narrowly as possible.

The problems that would be created by treating such empirical issues as for the judiciary rather than the legisla‐ ture—and the possibility that different judges might reach dramatically different conclusions about relative risks and their constitutional significance—illustrate why courts should not read Heller like a statute rather than an explana‐ tion of the Court’s disposition. The language from Heller that we have quoted is precautionary: it warns against readings that go beyond the scope of Heller’s holding that “the Second Amendment creates individual rights, one of which is keep‐ ing operable handguns at home for self‐defense.” Skoien, 614 F.3d at 640.

Since Heller, as Easterbrook notes, the Court has been silent on the scope of the right. In the meantime, the lower courts have continued to read it as narrowly as possible.

Heller does not purport to define the full scope of the Second Amendment. The Court has not told us what other entitlements the Second Amendment creates or what kinds of gun regulations legislatures may enact. Instead the Court has alerted other judges, in Heller and again in McDonald, that the Second Amendment “does not imperil every law regulating firearms.” McDonald, 561 U.S. at 786 (plurality opinion); Heller, 554 U.S. at 626–27 & n.26. Cautionary lan‐ guage about what has been left open should not be read as if it were part of the Constitution or answered all possible questions. It is enough to say, as we did in Skoien, 614 F.3d at 641, that at least some categorical limits on the kinds of weapons that can be possessed are proper, and that they need not mirror restrictions that were on the books in 1791.

What about the standard of review? Here too the Court has been silent:

So far, however, the Jus‐ tices have declined to specify how much substantive review the Second Amendment requires. Two courts of appeals have applied a version of “intermediate scrutiny” and sus‐ tained limits on assault weapons and large‐capacity maga‐ zines. See Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (a law materially identical to Highland Park’s is valid); Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir. 2015) (a ban on magazines holding more than ten rounds is valid).

Rather than scrutiny, Easterbrook would simply look to weapons that were in common use at the time of the ratification (hello muskets) or weapons useful to the militia (Miller).

But instead of trying to decide what “level” of scrutiny applies, and how it works, inquiries that do not resolve any concrete dispute, we think it better to ask whether a regulation bans weapons that were common at the time of ratification or those that have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” see Heller, 554 U.S. at 622–25; Miller, 307 U.S. at 178–79, and whether law‐abiding citizens retain adequate means of self‐defense.

This is not the holding of Heller. A handgun and an AR-15 would be of equal use for self defense, or for that matter in the militia. But as framed, Easterbrook can effectively limit Heller to its holding about handguns, and nothing else.

Remarkably, Easterbrook ties the “militia” prong not only to what weapons are usable in the militia, but limits it to what the state determines should be allowed.

Some of the weapons prohibited by the ordinance are commonly used for military and police functions; they there‐ fore bear a relation to the preservation and effectiveness of state militias. But states, which are in charge of militias, should be allowed to decide when civilians can possess mili‐ tary‐grade firearms, so as to have them available when the militia is called to duty. (Recall that this is how Heller under‐ stood Miller.)

This circularity makes no sense. Isn’t the question whether the state can regulate the weapon? How could it possibly be that the regulation is justified because the state can regulate it?

What about self defense? As he must, Easterbrook concedes that an AR-15 is “beneficial” for self defense.

True enough, assault weapons can be beneficial for self‐ defense because they are lighter than many rifles and less dangerous per shot than large‐caliber pistols or revolvers. Householders too frightened or infirm to aim carefully may be able to wield them more effectively than the pistols James Bond preferred.

Easterbrook counters, with no evidence that “Assault weapons” are the weapons of choice for “Mass Shootings!!!!!”

But assault weapons with large‐capacity magazines can fire more shots, faster, and thus can be more dangerous in aggregate. Why else are they the weapons of choice in mass shootings? A ban on assault weapons and large‐capacity magazines might not prevent shootings in Highland Park (where they are already rare), but it may reduce the carnage if a mass shooting occurs.

This is false. This report compiled by the Connecticut government finds that the overwhelming majority of mass shootings involved handguns, not assualt weapons. (H/T Will Scharf)

In any event, this flips the question. Weren’t we just talking about self defense. Why are now talking about how these guns could be used in mass shootings?

Easterbrook reduces the scrutiny to borderline rational basis–even if the ban doesn’t eliminate a problem, it may make those problems less dangerous, or even may make people feel safer!

A ban on assault weapons won’t eliminate gun violence in Highland Park, but it may reduce the overall dangerousness of crime that does occur. … If it has no other effect, Highland Park’s ordinance may increase the public’s sense of safety. Mass shootings are rare, but they are highly salient, and people tend to overestimate the likelihood of salient events. See George F. Loewenstein, Christopher K. Hsee, Elke U. Weber & Ned Welch, Risk as Feelings, 127 Psychological Bulletin 267, 275–76 (2001); Eric J. Johnson, John Hershey, Jacqueline Meszaros & Howard Kunreuther, Framing, Probability Distortions, and Insurance Decisions, 7 J. Risk & Uncertainty 35 (1993). If a ban on semi‐ automatic guns and large‐capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.

Over-reaction to mass shootings? If only someone wrote an article about that…

After offering a heap of evidence to support the state, Easterbrook says what pervades his entire opinion–let the democratic process define the counters of this enumerated right.

Heller and McDonald set limits on the regulation of firearms; but within those limits, they leave matters open. 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 ambigu‐ ous passages in the Supreme Court’s opinions. The central role of representative democracy is no less part of the Con‐ stitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legisla‐ tive process. See McCulloch v. Maryland, 17 U.S. 316, 407 (1819).

Easterbrook repeats a canard advanced in McDonald v. Chicago–that constitutional rights should mean different things in different places. Let federalism serve as the laboratories of democracy!

Another constitutional principle is relevant: the Constitu‐ tion establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local gov‐ ernments, but it does not foreclose all possibility of experi‐ mentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim.

Nonsense. The laboratories of democracy Justice Brandeis wrote of refers to adding constitutional rights, not subtracting them. The Heller majority did reject Justice Breyer’s argument that the “urban” D.C. environment changed the constitutional calculus. Federalism does not work here.

Easterbrook is borderline-contemptuous of Heller, and tries as hard as he can to minimize it to a nullity. And he even dares the Justices to do tell him he’s wrong:

Whether those limits should be extended is in the end a question for the Justices. Given our understanding of existing limits, the judgment is affirmed.

He was reversed before in the case that became McDonald v. Chicago. He should be reversed again.

Beyond constitutional law, Judge Easterbrook made a number of fundamental mistakes about firearms. My friend Will Scharf offers a helpful list:

(1) Page 4: “The AK‐47 and AR‐15 (M16) rifles in military use also are submachine guns, though civilian versions are re‐ stricted to semi‐automatic fire.”

No they’re not; they’re assault rifles.  Submachine guns fire pistol calibre cartridges by definition.  The AK and AR fire 7.62 and 5.56 mm rifle cartridges, respectively.

(2) Passim: Machine guns are not “illegal.”  He keeps referring to them as illegal throughout the opinion.  That’s just a bad misstatement of the law.  They’re illegal if you don’t have a federally-issued NFA license; with an NFA registration, they’re legal.  Calling them “federally-regulated” would have been more accurate.

(3) Page 6: Easterbrook seems blissfully unaware that you can buy large cap magazines for handguns.

(4) Page 6: “We also know that assault weapons gen‐ erally are chambered for small rounds (compared with a large‐caliber handgun or rifle), which emerge from the barrel with less momentum and are lethal only at (relatively) short range.”  Is Easterbrook saying that a 5.56 from an AR emerges from the barrel with less momentum than a cartridge from a large-caliber handgun?  Out of a 5 inch barrel, a .45 ACP bullet is moving at about 1,000 fps.  An AR-15 will typically give you about 3,000 fps with a 5.56.  The much smaller 5.56 is much, much more powerful in terms of kinetic energy and is lethal at a significantly longer range than the handgun bullet.

(5) Page 6: “This suggests that [assault weapons] are less dangerous per bullet—but they can fire more bullets.”  Page 9: “assault weapons can be beneficial for self‐defense because they are lighter than many rifles and less dangerous per shot than large‐caliber pistols or revolvers.”

He doesn’t seem to understand that a 5.56mm round from a rifle cannot be compared to, for example, a 9mm round from a pistol—the ballistic characteristics of the two are just wholly different.  The 5.56, while technically smaller, is far more powerful and lethal.
(6) Page 9: “Householders too frightened or infirm to aim carefully may be able to wield them more effectively than the pistols James Bond preferred.”  The “pistols James Bond preferred” were little Walther PPK/Ss, chambered in .380 ACP at most.  That’s a tiny cartridge.  Easterbrook making them out to be big and scary is absurd.  Just look at ’em!  They’re little and sleek.
(7) Page 9: “Why else are they the weapons of choice in mass shootings?” This isn’t true.  Most mass shootings involve handguns, and few involve assault weapons.  And when they do involve assault weapons, they typically also involve handguns.  I count 33 out of 49 using handguns and not what Easterbrook would call an assault weapon here: http://www.cga.ct.gov/2013/rpt/2013-R-0057.htm
(8) Page 11: “If a ban on semi‐ automatic guns and large‐capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that’s a substantial benefit.”  WHAT?!?  Now he’s saying/implying that a ban on semi-automatic guns would be valid?  That’s far, far beyond the assault weapon ban at issue.