Opinion
New York – -(AmmoLand.com)- As explained by the Seventh Circuit in Friedman, “The City of Highland Park has an ordinance (§136.005 of the City Code) that prohibits possession of assault weapons or large-capacity magazines (those that can accept more than ten rounds).”
See AQ article American’s Have Every Right to Own So Called ‘Assault Weapons ’, for further explication of Government failure to recognize the Constitutionality of civilian ownership and possession of semiautomatic weapons, derogatorily and erroneously referred to as “assault weapons.”
The High Court in Heller ordered Courts not to utilize interest-balancing when reviewing the constitutionality of a Governmental action impacting the Second Amendment. That was explicit.
The Seventh Circuit used that test anyway and found the ordinance did not violate the Second Amendment. That was hardly surprising. Whenever a reviewing Court uses interest-balancing to test the constitutionality of a Governmental action impacting the Second Amendment, the Court invariably finds an unconstitutional act not to violate the Constitution. That is why the U.S. Supreme Court dispensed with “interest-balancing” in the recent Bruen decision. When a Court uses that test, it gives the illusion that the Court is truly balancing the interests between the State action and the individual right. But the individual right always loses to the State’s action. That is inevitable.
To add insult to injury, the Seventh Circuit used the test that Justice Breyer championed in Heller, which he referred to again in Bruen. But Breyer was writing a dissenting opinion in Heller, and he stuck with it in Bruen. A dissenting opinion isn’t the Court’s holding. But many jurisdictions wanted the dissenting opinion to operate as a holding in Second Amendment cases. And so, they pretend the dissenting opinion in Heller was the majority ruling opinion. It is incredible. Such rulings of lower Courts utilizing a test that the majority in Heller did not countenance and explicitly and emphatically refuted would rely on that test, interest-balancing, anyway.
In Friedman, the Seventh Circuit decided to go with the dissent’s reasoning rather than with the law as propounded by the Majority in Heller. Justice Thomas was justifiably furious. And he took the Seventh Circuit to task and, by extension, tacitly chastised those members of the High Court who did not want to hear the case.
Given its importance to the reasoning and ruling in Bruen, we cite at length the comment of Justice Thomas in the Friedman case which the High Court refused to grant a hearing on. Justice Thomas said, in substantial and pertinent part—with the late, eminent Justice Scalia joining him,
“Based on its crabbed reading of Heller, the Seventh Circuit felt free to adopt a test for assessing firearm bans that eviscerates many of the protections recognized in Heller and McDonald. The court asked in the first instance whether the banned firearms ‘were common at the time of ratification’ in 1791. But we said in Heller that ‘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.’
The Seventh Circuit alternatively asked whether the banned firearms relate ‘to the preservation or efficiency of a well-regulated militia.’ The court concluded that state and local ordinances never run afoul of that objective since ‘states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms.’ But that ignores Heller’s fundamental premise: The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs but by what private citizens commonly possess. Moreover, the Seventh Circuit endorsed the view of the militia that Heller rejected. . . .
The Seventh Circuit alternatively asked whether the banned firearms relate ‘to the preservation or efficiency of a well-regulated militia.’ The court concluded that state and local ordinances never run afoul of that objective since ‘states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms.’ But that ignores Heller’s fundamental premise: The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs but by what private citizens commonly possess.
The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits. The court conceded that handguns — not ‘assault weapons’ — ‘are responsible for the vast majority of gun violence in the United States.’ Still, the court concluded, the ordinance ‘may increase the public’s sense of safety,’ which alone is ‘a substantial benefit.’
Heller, however, forbids subjecting the Second Amendment’s ‘core protection . . . to a freestanding ‘interest-balancing’ approach. . . .’ There is no basis for a different result when our Second Amendment precedents are at stake. I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right [citations omitted; passim].”
The Heller Test
Justice Thomas spent considerable time in Bruen outlining the Heller test so that there would be no doubt as to the standard of review lower Federal and State Courts must employ when a Government action impinges upon the Second Amendment. He said:
“The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. . . .”
“In Heller, we began with a ‘textual analysis’ focused on the ‘normal and ordinary’ meaning of the Second Amendment’s language. That analysis suggested that the Amendment’s operative clause—‘the right of the people to keep and bear Arms shall not be infringed’—‘guarantee[s] the individual right to possess and carry weapons in case of confrontation that does not depend on service in the militia.
From there, we assessed whether our initial conclusion was ‘confirmed by the historical background of the Second Amendment. . . .’ We looked to history because ‘it has always been widely understood that the Second Amendment . . . codified a pre-existing right.’ The Amendment ‘was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors.” After surveying English history dating from the late 1600s, along with American colonial views leading up to the founding, we found ‘no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.’
We then canvassed the historical record and found yet further confirmation. That history included the ‘analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment’ and ‘how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century,” . . . . When the principal dissent charged that the latter category of sources was illegitimate ‘post enactment legislative history’. . . . We clarified that ‘examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification’ was “a critical tool of constitutional interpretation. . . .’”
This boils down to the following:
First, look at the plain meaning of the Second Amendment: The right of the people to keep and bear arms is an individual right. The militia clause sets forth simply a rationale for it—to inhibit the incursion of Tyranny in Government—which therefore emphasizes the need for the American people—as individuals—to keep Tyranny in check through the best means available: the force of arms.
In fact, this is the only way to keep Tyranny in check. And we see this now. Tyranny now exists in Government. Sadly, there’s no question about it.
It is more than a mere wish that drives Anti-Second Amendment usurpers to deny Americans their right to keep and bear arms. It is abject fear, even panic, which motivates them to openly defy the transparent and categorical meaning of the Second Amendment.
Among many Americans who had placed their faith in Government but who hadn’t succumbed to Government’s new religious dogma of “Diversity, Equity, and Inclusion”—upon which the Destroyers of our Nation, and of our Constitution, and of a free and sovereign people insidiously cloaked their aims to dismantle the Republic so that they may thrust the remains into the “NWO” a.k.a. “Neoliberal World Order” a.k.a. “International World Order,” a.k.a. the “Open Society,”—the truth is becoming known.
Even the most obtuse of Americans see that the Federal Government and the Soros-funded State and local Governments are moving this Nation perilously close to destruction and oblivion. And it is much too late for these ruthless creatures that seek the demise of a free Constitutional Republic and a Sovereign American people over Nation and Government to disguise that fact.
The Bruen decision establishes the stakes for the American people. It is a zero-sum game. There is no compromise. There can be no compromise with a Tyrant. Americans have a fundamental God-Given unalienable right of armed self-defense against predatory beast, predatory man-beast, and predatory Government, i.e., tyranny. Heller and McDonald made this Truth plain. The Federal Government and many States refused to listen. So, the U.S. Supreme Court reiterated the right of armed self-defense. Will the Federal Government and the States listen? Judging by what we see from the actions of New York, the State Government intends to do war with Americans. Far from complying with Bruen, Governor Hochul and the New York Legislature in Albany have no intention of complying with Bruen, any more than New York did with Heller and McDonald. In fact, Bruen makes gun ownership in New York much worse, especially for those who wish to secure an unrestricted concealed handgun carry license.
The New York Government has told the U.S. Supreme Court plainly “to go to Hell,” and they mean the same for those citizens who reside in New York who wish to exercise their God-Given right of armed self-defense.
The danger to the security of a free State is currently very much in doubt. That is why we are spending considerable time on Bruen and will continue to do so in the next several installments, leading up to the critical Midterm Elections in November.
Friedman vs. Highland Park, 784 F. 3d, 406 (7th Cir. 2015)
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