SADEC Files Amicus Brief in 7th Circuit
A few days ago I wrote to you about the plantiff brief that was filed in the Seventh Circuit by FFL-IL to make three big arguments as to why the three judge panel should uphold the final decision by Judge McGlynn in the district court.
SADEC and the Second Amendment Law Center are proud to be able to partner on a follow-on amicus brief that was just filed a couple of hours ago. In this brief we:
Remind the Seventh Circuit that they have successfully followed Supreme Court precedent on second amendment cases twice in the past:
This Court, on at least two occasions, has successfully applied the ratio decidendi of the Supreme Court’s cases in this field. See, e.g., Ezell v. City of Chicago, (holding that the city cannot impose required training for exercising a fundamental right while outlawing that training within city limits). Even without the benefit of the methodology crystalized in New York State Rifle & Pistol Association, Inc. v. Bruen, this Court reached the correct result in a similar challenge a decade earlier through a scrupulous application of District of Columbia v. Heller, and McDonald v. City of Chicago, . Moore v. Madigan, (recognizing that the right to keep and bear arms includes the right to carry arms in public).
Emphasize that Precedent or Considered Dicta Indicates That a Majority of the Supreme Court Justices Already Agree That AR-15s Are in Common Use for lawful purposes and are therefore not able to be banned. We also remind the court of Justice Thomas’s dissental from the denial of cert in Friedman v. Highland Park
The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly 5 million Americans own AR-style semiautomatic rifles. [citation omitted] The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. [citation omitted] Under our precedents, that is all that is needed for for citizens to have a right under the Second Amendment to keep such weapons.
Both the majority opinion in Garland v. Cargill AND the denial for cert in an earlier iteration of this case written by Justice Alito and joined by Justice Thomas declare that the AR-15 as in common use today.
In their denial of certiorari in the Snope v. Brown case just two weeks ago justices Alito and Gorsuch would have granted the petition.
Also in the deinal of certiorari in the Snope v. Brown case Justice Kavanaugh (who did NOT vote to take the case, but wanted to see the issue percolate more) states that “Americans today possess an estimated 20 to 30 million AR-15s. And AR-15s are legal in 41 of the 50 States, meaning that the States such as Maryland that prohibit AR-15s are something of an outlier.”
In that same statement, Justice Kavanaugh shares that, “Given that millions of Americans own AR-15s and that a significant majority of the States allow possession of those rifles, petitioners have a strong argument that AR-15s are in “common use” by law-abiding citizens and therefore are protected by the Second Amendment under Heller. [citation omitted] If so, then the Fourth Circuit would have erred by holding that Maryland’s ban on AR-15s complies with the Second Amendment.”
And in, perhaps, the most damning conviction of the 7th Circuits broken logic and alawful tests, Justice Kagan wrote in the MAJORITY OPINION of the Smith and Wesson Brands inc. v. Estados Unidos Mexicanos that “[AR-15 and AK-47 rifles] are both widely legal and bought by many ordinary consumers. (The AR-15 is the most popular rifle in the country….)
If you are keeping a roster, that gives us four sitting and one deceased Justice of the Supreme Court who thinks it has already been persuasively established that the semiautomatic rifles at issue in this case are common—even ordinary—rifles (Justices Thomas, Kavanaugh, Sotomayor, Kagan, and the dearly departed Scalia). And while Justices Alito and Gorsuch have not expressly stated over their signatures in any published opinion that such rifles are common and ordinary, their assent to this proposition is strongly implied by the decisions they have authored or joined in the past.
The same week that the Supreme Court denied certiorari in Snope, it struck down an attempt to impose such a-textual burdens onto plaintiffs in Title VII cases, chastising the inferior court for straying from statutory text and Supreme Court precedent. Ames v. Ohio Dep’t of Youth Servs. The responsibility of lower courts, including the Seventh Circuit Court of Appeals, is to defer to precedent of The Supreme Court. The “Military Use” test from Friedman v. Highland Park which was carried forward into this courts denial of a preliminary injunction in the Barnett cases is a clear affront to precedent and was created from whole cloth. There is no such test for military utility in any of the Supreme Court’s decisions on weapon types. Even if it may have been valid prior to NYSRPA v. Bruen (it wasn’t) it CERTAINLY isn’t in a post Bruen world.
Dangerous AND Unusal arms might be subject to regulation under Heller, but an arm that is just dangerous (aren’t they all) or just unusual is NOT subject to regulation. Anti-2A courts such as the Ninth and 7th Circuits have twisted the standard to be Dangerous OR Unusual. A complete bastardization of the Supreme Court’s meaning of a conjunctive application of the words two describe a dual condition, not one or the other. In Caetano v. Massachusetts the majority opinion states that, “A weapon may not be banned [from public carry] unless it is both dangerous and unusual.” Lower courts DO NOT get to cherry pick words from an opinion and apply them independently without context.
The brief finishes with a challenge to the Seventh Circut NOT to become the Ninth Circuit which regularly ignores Supreme Court dicta with this question;
Is that work to be the willful exhibitionism of an erratic en banc Ninth Circuit, or the craftsman-like work that the Seventh Circuit is known for? The answer should turn on how this Court treats the considered dicta that the Supreme Court has been posting for the past 17 years in its Second Amendment rulings, assuming that this Court doesn’t just take Justices Thomas and Kavanaugh at face value, that binding precedent already exists.
Use the link at the top of this post to read the brief in its entirety and share it with your friends. With your support the Constitution will survive.