Appeals court upholds Illinois assault-weapons ban, SCOTUS takes "bump stock" case

Two significant gun regulation developments — days before Supreme Court arguments in a third gun-related case. And: A second trans care case at SCOTUS.

Late Friday afternoon, the U.S. Court of Appeals for the Seventh Circuit upheld Illinois’s ban on assault weapons and high-capacity magazines — a major decision applying the U.S. Supreme Court’s 2022 decision striking down a New York gun law to uphold a different gun restriction.

Hours earlier, the U.S. Supreme Court had announced it would be hearing a case over the “bump stock” rule issued by the Trump administration following the deadly 2017 mass shooting in Las Vegas that left 60 dead.

Judge Diane Wood, a Clinton appointee, wrote the Seventh Circuit decision upholding the Illinois law, as well as several similar local laws in the state, by applying the Second Amendment “history and tradition“ test advanced by Justice Clarence Thomas in 2022’s New York State Rifle & Pistol Association, Inc. v. Bruen to the laws. She was joined by Judge Frank Easterbook, a Reagan appointee, in the decision, which Wood summed up as follows:

The State of Illinois, in the legislation that lies at the heart of these cases, has decided to regulate assault weapons and high-capacity magazines—a decision that is valid only if the regulated weapons lie on the military side of that line and thus are not within the class of Arms protected by the Second Amendment. Several municipalities have done the same. The plaintiffs in these cases challenge that conclusion. Using the tools of history and tradition to which the Supreme Court directed us in Heller and Bruen, we conclude that the state and the affected subdivisions have a strong likelihood of success in the pending litigation.

The decision came out of several cases that were heard together. Because those lower courts had reached conflicting decisions, the appeals court affirmed lower court decisions that had allowed the laws to go into effect and vacated the injunction against enforcement of the laws issued in other cases.

Judge Michael Brennan, a Trump appointee, dissented, writing, “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.”

In the other big gun case news of the day, the Supreme Court agreed to hear the Justice Department’s appeal of an en banc decision from the U.S. Court of Appeals for the Fifth Circuit that, in a mixed opinion that conflicted with multiple other appeals court decisions, ruled against enforcing the “bump stock” regulation now being defended by the Biden administration.

The “bump stock” rule case is not a case about Bruen, but rather a case about whether the decision to regulate bump stocks under existing law was a permissible interpretation of the definition of "machinegun" as set forth in federal law.

After the Fifth Circuit issued its decision in January, the Justice Department in April asked the Supreme Court to hear the case. As DOJ put it:

Bump stocks allow a shooter to fire hundreds of bullets a minute by a single pull of the trigger. Like other machineguns, rifles modified with bump stocks are exceedingly dangerous; Congress prohibited the possession of such weapons for good reason. The decision [of the Fifth Circuit] contradicts the best interpretation of the statute, creates an acknowledged circuit conflict, and threatens significant harm to public safety. This Court should grant the petition for a writ of certiorari and reverse.

Although DOJ’s petition was originally set to be considered at the justice’s first conference after summer recess, there was some delay — as regularly happens — but the court announced it would be hearing the case, along with two other new cases, following the justice’s private conference on Friday. (One of the other two new grants is also gun-related, insofar as the National Rifle Association is a party, but it is primarily a First Amendment case addressing government regulation related to "controversial speakers.")

All of that Friday news also comes just days before the justices are due to hear oral arguments on Tuesday in U.S. v. Rahimi, yet another case in which the Biden administration asked the Supreme Court to take up and reverse a Fifth Circuit decision.

In Rahimi, the issue is whether the federal law barring people subject to a domestic violence restraining order from possessing firearms is unconstitutional under Bruen. A three-judge panel of the Fifth Circuit held earlier this year that the Second Amendment — as interpreted by the current Supreme Court — renders that federal prohibition unconstitutional.

The Rahimi arguments obviously matter on their own — but Friday’s Seventh Circuit decision makes them relevant for another reason.

While it’s likely that challengers to the Illinois bans will seek Supreme Court review, it’s not clear the court will want to take them up. In addition to taking the cases, the court could deny certiorari, allowing the Seventh Circuit decision to stand without making any national rule, or they could hold the cases for months and then send them back to the Seventh Circuit to reconsider them in light of the eventual Supreme Court decision in Rahimi.

I know that’s looking forward quite a ways, but it’s worth thinking about. In any event, it’s almost certain that the case wouldn’t be heard by the Supreme Court this term on an ordinary schedule.

All of that said, though, there’s always the shadow docket. If the challengers seek to keep the law on hold pending the resolution of an eventual certiorari petition, all bets are off. For example, the state might respond that the court shouldn’t grant a stay — but, if it does, it should immediately grant the case and review it this term.

---

A second trans care ban cert petition

On Friday, lawyers for those families challenging Kentucky’s ban on gender-affirming medical care for minors filed their petition for a writ of certiorari at the U.S. Supreme Court — the second such request filed this week.

More on this to come, but I wanted to make sure I highlighted the news that it was filed on Friday.