Illinois officials claim Second Amendment only protects handguns for self-defense

AP Photo/Jae C. Hong

I’ve seen a lot of dumb arguments from anti-gunners over the years, many of them repeated ad nauseam, so I’ll give Naperville, Illinois and its attorneys a small amount of credit for their originality in defending the city’s ban on so-called assault weapons in its latest filing with the Seventh Circuit. But from a legal perspective, the city’s claim that the right to keep and bear arms extends only to handguns is downright silly, not to mention contradicted by several Supreme Court opinions.


Oh really? What about this passage from the Heller decision?

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g.Reno v. American Civil Liberties Union521 U. S. 844849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g.Kyllo v. United States533 U. S. 2735–36 (2001) , 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.

Or this from the Supreme Court’s opinion in Caetano, which dealt with Massachusetts’ ban on stun guns:

The Court has held 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,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008) , and that this “ Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010) . In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582.

The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ ”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” 470 Mass., at 781, 26 N. E. 3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.

Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposition “that only those weapons useful in warfare are protected.” 554 U. S., at 624–625.


Naperville’s entire case is based on the false premise that the so-called assault weapons banned by their ordinance aren’t protected by the Second Amendment, and this is just one of the lame arguments made by the city’s attorneys (which include staffers from the Brady Campaign), who also maintain that even if “assault weapons” are covered by the Second Amendment there’s no right to buy or sell them. Seems to me if you have the right to keep and bear a particular arm you must also have ability to acquire one for lawful purposes, especially since the gun control lobby also maintains that we don’t have a right to build our own. If you have the right to “keep” you must also have the right to “get” an arm for self-defense, and the Seventh Circuit should reject the city’s premise outright.

Of course what the Seventh Circuit should do and what it will do may turn out to be two very different things, but I don’t think Naperville’s argument is going to stand up to scrutiny at the Supreme Court. In fact, their arguments are so laughably bad I can’t help but wonder if they might end up persuading one or more justices to weigh in sooner rather than later. Justice Amy Coney Barrett has given Naperville until next Monday to respond to a request for an emergency injunction filed by the plaintiffs in Bevis v. Naperville, and while it would be pretty extraordinary for SCOTUS to step in an intervene at such an early stage, the blatant misrepresentation of what the Court has previously said will hopefully prompt the justices to weigh in at the earliest opportunity. If not, we’re going to continue to see the blatant disregard for Supreme Court precedent continue, and the Second Amendment rights of Illinois residents infringed all the while.


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