Source.

SPRINGFIELD, Ill. — A federal judge in East St. Louis issued an order Friday blocking enforcement of Illinois’ ban on assault weapons and high-capacity magazines until a lawsuit challenging the law is resolved.

Judge Stephen P. McGlynn, of the Southern District of Illinois, said the law known as the Protect Illinois Communities Act, or PICA, is likely to be found unconstitutional when the case goes to trial and the plaintiffs in the consolidated cases will suffer harms without a preliminary injunction to block its enforcement.

In a 29-page opinion, McGlynn acknowledged that the law was passed in the wake of a mass shooting at an Independence Day parade in Highland Park last year. But he said the “senseless crimes of a relative few” cannot be used to justify abridging the constitutional rights of law-abiding citizens.

That’s the so-called “heckler’s veto” which we discussed just recently.  These legal doctrines do matter.

“More specifically, can PICA be harmonized with the Second Amendment of the United States Constitution and with Bruen?” McGlynn asked rhetorically in the opinion. “That is the issue before this Court. The simple answer at this stage in the proceedings is ‘likely no.'”

McGlynn’s decision came less than a week after another federal judge, Lindsay Jenkins, of the Northern District of Illinois, reached an opposite conclusion and denied a motion to halt enforcement of the law. Plaintiffs in that case have indicated they intend to appeal to the Seventh Circuit Court of Appeals.

This will likely go to the seventh circuit to rectify the split, and all bets are off there.  But the seventh circuit will block the law, in which case it’s either over or it may go to the supreme court, or they will uphold the law, in which case it will certainly go to the supreme court.

Judge Benitez hasn’t issued his ruling for California as of this writing, but there isn’t much doubt as to what he will do.  In the end, these will likely go to the supreme court, with the decision based on Heller, which stipulates that if a weapon is in common use for lawful purposes, it cannot be banned.  Heller doesn’t say if a weapon is in common use for self defense it cannot be banned.  It says “for lawful purposes.”  If there are thirty million ARs and AKs in America and they are all being used to adorn fire place mantles, that’s common use.

Here is Judge Stephen P. McGlynn’s ruling.  Here are some takeaways from the ruling.

The prefatory clause of the Second Amendment states, “[a] well-regulated Militia, being necessary to the security of a free State . . . .” The prefatory clause “announces a purpose” for the operative clause but “does not limit [it].” Id. Meaning that there “must be a link between the state purpose and command” but that the scope of the operative clause remains unchanged by the prefatory language. See Id. As the Supreme Court noted, the operative clause of the Second Amendment creates an individual right. See Id. at 598. Thus, logic demands that there be a link between an individual right to keep and bear arms and the prefatory clause. The link is clear, “to prevent elimination of the militia.” Id. at 599. During the founding era, “[i]t was understood across the political spectrum that the right . . . might be necessary to oppose an oppressive military force if the constitutional order broke down.” Id. Therefore, although “most undoubtedly thought [the Second Amendment] even more important for self-defense and hunting” the additional purpose of securing the ability of the citizenry to oppose an oppressive military, should the need arise, cannot be overlooked. See Id.

Which I have always maintained.  The prefatory clause is sufficient but not necessary, or sufficient but not comprehensive.

The second section of the operative clause, “Keep and Bear Arms,” defines the substance of the right held by “the people.” Id. The Heller Court first turned to what constitutes “arms” and found that “arms” were understood, near the time of the ratification of the Second Amendment, to mean any weapon or thing that could be used for either offense or defense. See Id. The Court specifically noted 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.” Id. at 582. Finally, the Court turned to the meaning of “keep” and “bear.” Id. at 582-92. These words are understood, in light of founding era history, to mean to “have” and to “carry” respectively. See Id. at 582-84. In sum, the operative clause of the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” Id. at 592.

Yes, although the supreme court dealt specifically with the “keeping” part of the RKBA in Heller, and the “bearing” part in Bruen.

… in the years following Heller and McDonald, the Courts of Appeals analyzed the Second Amendment under a two-step test. See Id. at 2126. The first step included an analysis to determine if “the original scope of the right based on its historical meaning.” Id. The second step was a balancing test of either intermediate scrutiny or strict scrutiny depending on “[i]f a ‘core’ Second Amendment right is burdened.” See Id. (quoting Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017) (en banc)).

The Bruen Court firmly rejected this two-step framework, concluding that “[d]espite the popularity of this two-step approach, it is one step too many.”

Bruen once and for all ended “interest balancing” for the RKBA.  It’s over and done with, and should more cases appear before the Supreme Court where interest balancing has occurred, they will be dealt a blow.

He goes on to deal with magazines, and many other important things.  I’m disappointed that Judge Benitez hasn’t issued his ruling, for I expect it to be a good one.  However, this is an excellent ruling for the RKBA.

Here is Mark Smith celebrating the victory.

Prior:

Sixth Circuit Strikes Down Bump Stock Ban

Hundreds more in the Second Amendment Category