Seventh Circuit Delivers Barnett Ruling in Second Amendment Roundup

On July 9, the Seventh Circuit issued a ruling in Barnett v. Raoul that sustains Illinois’s prohibition on AR-15 rifles. Perhaps it missed the memo that the Supreme Court granted certiorari on June 30 concerning the Seventh Circuit’s prior ruling in Viramontes v. Cook County, which presented the same question of whether an AR-15 ban violates the Second Amendment. By affirming Barnett, the Seventh Circuit gives the impression of delivering what amounts to an informal brief in support of its earlier Viramontes decision. (Certiorari was also granted in Grant v. Higgins, addressing Connecticut’s similar ban; see the post linked here.)

Although the judiciary is generally predisposed to uphold restrictions on Second Amendment rights, on July 1 the Ninth Circuit paused proceedings in Miller v. Bonta, which challenges California’s comparable ban, while awaiting the Supreme Court’s resolution of the core issue. By contrast, the Third Circuit on July 6 invited supplemental briefs in its en banc review of Cheeseman and Ass’n of N.J. Rifle & Pistol Clubs, both against Attorney General of New Jersey, concerning New Jersey’s AR-15 prohibition. The briefs would engage with the impact of the Supreme Court’s recent decisions in Wolford and Hemani. If the court were to strike down New Jersey’s statute, it would present the Supreme Court with a contrary view to other appellate courts that have uniformly sustained these bans.

Examining Barnett on the merits reveals a doubling down on questionable premises. A four-day bench trial overseen by U.S. District Judge Stephen McGlynn concluded that Illinois’s ban violates the Second Amendment, yet the Court of Appeals rejected the district court’s factual and legal conclusions. Notably, the appellate court had earlier instructed the district court to conduct a trial on a number of issues, only to overturn the district court’s findings later. That sequence raises the question of what purpose the trial ultimately served.

In the majority opinion authored by Judge St. Eve and joined by Judge Easterbrook, the Barnett court treated the prohibited rifles as “arms” under Bruen’s first step, but determined that the ban aligns with “the principles that underpin the American regulatory tradition” under Bruen’s second step. The panel overlooked the fact that the Supreme Court had already held in Heller that whether a historical tradition allows an arms ban depends on whether the arm is dangerous and unusual, instead proceeding with its own analysis as if Heller did not govern restrictions on arms.

The court anchored its reasoning to a prominent precedential example of that era: regulations of the Bowie knife—or, as a Reconstruction-era court described it, the “instrument of almost certain death.” Cockrum v. State, 24 Tex. 394, 402 (1859).

It ignored the fact that Reconstruction began in 1866, well after this antebellum decision, and noted that Cockrum dealt with a Texas law that made it murder to use a Bowie knife in an unlawful killing. It, however, bore little relation to a blanket prohibition on peaceful possession: “The right to carry a bowie-knife for lawful defense is secured, and must be admitted.” The passage Barnett quotes also speaks of the person who carries such a weapon for lawful defense and faces an enhanced penalty for abusing a right dangerous to others.

Barnett then discusses laws that, in the main, regulated concealed carry of Bowie knives in the Southern states. The era produced no outright possession bans. And those same laws typically restricted concealed carry of pistols. The court singled out one statute that purportedly crossed the line—Georgia’s ban on carrying pistols and Bowie knives. That statute allowed open carrying of Bowie knives (see Section 4) while wholly prohibiting pistol carriage. Moreover, in Nunn v. State (1846), the Georgia Supreme Court held that banning pistol carriage violated the right to bear arms because it prohibited open carry as well as concealed carry. Yet Nunn is only one case, Barnett remarks, which is hardly surprising since no other state had a complete prohibition on carriage. It is also worth noting that Nunn received endorsement from Heller and Bruen.

Now for the pivotal point: Barnett concedes that “Bowie knives were both widespread and used for lawful purposes.” They were “especially suitable for self-defense” and “typically kept for self-defense.”

That conclusion makes it look as though Bowie knives pass the common-use test. Indeed, Bruen observed that in medieval times, “almost everyone wore a knife or dagger at the belt,” civilians carried them for self-protection, and they bore resemblance to modern handguns.

Even though Bruen reiterates that the Second Amendment protects “weapons ‘in common use’ today for self-defense,” Barnett asserts that “Bruen cuts against the claim that a weapon’s common use immunizes it from regulation.” (The court interprets “regulation” as a ban.) Citing the certiorari grant in Viramontes, Barnett argues that “the Court has not laid out a comprehensive framework for evaluating challenges to restrictions on particular weapons, as its recent grant of certiorari in cases akin to this one indicates.” The implication is that the Court has in fact repeatedly done so, but certain lower courts resist following it.

Chief Judge Brennan dissented in Barnett. He highlighted that the district court had produced “the most comprehensive trial record in any Second Amendment case to date,” and argued that “Our Nation’s enduring traditions forbid governments from prohibiting firearms commonly owned for self-defense. Because the people have overwhelmingly chosen the AR-15 rifle and its magazine as their weapon of choice, they are protected by the Second Amendment.”

A major thrust of the dissent centers on the common-use test. “That test properly focuses on the people. The Second Amendment right is an individual right, as Heller held. The Court rejected a method where judges decide which weapons are needed for self-defense.” Given the millions of AR-15s in civilian hands and their legality in most states, “a court can account for how many of the firearms are owned and how many states ban their possession to determine whether a firearm is in common use.” The dissent suggests that this is hardly a difficult matter.

What is in common use can, however, be manipulated by the government—had the federal 1994 “assault weapon” ban not expired a decade later, the common-use of AR-15s would have been shrinking. Even if one argues that the common-use test is circular because “what can be banned depends on what has been banned,” the dissent notes that this is not a justification to reintroduce circular reasoning into Second Amendment law. If a majority of the Supreme Court did not adopt that objection in Heller, then lower courts should not either. Likewise, the “dangerous and unusual” test has drawn criticism because the government can ban a new firearm design as soon as it appears, making it forever unusual. Yet to ban a weapon immediately, the government must present evidence that it is used by criminals rather than by law-abiding citizens for legitimate self-defense. Otherwise, the government must “wait and see” how the public adopts and uses the firearm before a ban can be justified.

As Chief Judge Brennan puts it, “To say AR-15s are not in ‘common use’ does not pass the ‘red-face’ test.” The majority fails to apply the test properly, instead adopting its own newly minted “particularly dangerous weapons” standard. But that novel test rests on none of the specific features of the AR-15; the majority lists features yet avoids detailing what makes them especially dangerous. The dissent does address the features: “The district court also heard from self-defense experts who all reported that recoil, lighter weight, shorter barrel, and an ergonomic stock and grip make ‘AR platform rifles’ well-suited for self-defense, which is why they are commonly employed in popular ‘defensive carbine courses.’”

The conclusion, as Chief Judge Brennan expresses it, is straightforward: “Whether a firearm is useful for self-defense is not a matter for judges to decide. The people determine which weapons they will own for self-defense.” Meanwhile, the Supreme Court will likely need to curb such stubbornness in the lower courts when it rules on Viramontes and Grant.