In the

United States Court of Appeals For the Seventh Circuit

____________________No.143091ARIES.FRIEDMANandILLINOISSTATERIFLEASSOCIATION,

PlaintiffsAppellants,v.

CITYOFHIGHLANDPARK,ILLINOIS,DefendantAppellee.

____________________AppealfromtheUnitedStatesDistrictCourtforthe

NorthernDistrictofIllinois,EasternDivision.No.13C9073JohnW.Darrah,Judge.

____________________ARGUEDJANUARY22,2015DECIDEDAPRIL27,2015

____________________

Before EASTERBROOK, MANION, and WILLIAMS, CircuitJudges.

EASTERBROOK,Circuit Judge. TheCity ofHighland Parkhasanordinance (136.005of theCityCode) thatprohibitspossession of assaultweapons or largecapacitymagazines(thosethatcanacceptmorethantenrounds).Theordinancedefines an assaultweapon as any semiautomaticgun thatcan accept a largecapacity magazine and has one of five

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other features: a pistol grip without a stock (for semiautomaticpistols,thecapacitytoacceptamagazineoutsidethepistolgrip);afolding,telescoping,orthumbholestock;agrip for thenontriggerhand;abarrelshroud;oramuzzlebrakeor compensator.Someweapons, suchasAR15sandAK47s,areprohibitedbyname.ArieFriedman,wholivesinHighland Park, owned a banned rifle and several largecapacitymagazinesbeforetheordinancetookeffect,andhewantstoowntheseitemsagain;likewisemembersoftheIllinois StateRifleAssociation, some ofwhom live inHighland Park. Plaintiffs asked the district court to enjoin enforcementoftheordinance,arguingthatitviolatestheConstitutionsSecondAmendment,seeDistrictofColumbiav.Heller, 554U.S. 570 (2008), applied to the states by the Fourteenth.SeeMcDonaldv.Chicago,561U.S.742(2010).Hellerholds thata lawbanning thepossessionofhand

guns in thehome (ormaking theiruse in thehome infeasible)violates the individual right tokeepandbeararmssecuredbytheSecondAmendment.ButtheCourtaddedthatthisisnotarighttokeepandcarryanyweaponwhatsoeverinanymannerwhatsoeverand forwhateverpurpose.554U.S.at626.Itcautionedagainst interpreting thedecision tocast doubt on longstanding prohibitions, including thehistorical tradition ofprohibiting the carrying of dangerousandunusualweapons.Id.at623,627.Itobservedthatstatemilitias,whencalledtoservice,oftenhadaskedmembers tocomearmedwith thesortofweapons thatwereincommon use at the time, id. at 624, and it thought thesekindsofweapons (whichhavechangedover theyears)areprotectedbytheSecondAmendmentinprivatehands,whilemilitarygradeweapons(thesortthatwouldbeinamilitiasarmory),suchasmachineguns,andweaponsespeciallyat

No.143091 3

tractive to criminals, such as shortbarreled shotguns, arenot.Id.at62425.

Plaintiffscontendthatthereisnohistoricaltraditionofbanning possession of semiautomatic guns and largecapacity magazines. Semiautomatic rifles have been marketed for civilian use for over a hundred years;HighlandParks ordinance was enacted in 2013. But this argumentprovestoomuch:itslogicextendstobansonmachineguns(whichcanfiremorethanoneroundwithasinglepullofthetrigger,unlikesemiautomaticweaponsthatchamberanewround automatically but require a newpull to fire).Hellerdeemedabanonprivatepossessionofmachineguns tobeobviously valid. 554U.S. at 624.But statesdidnt begin toregulateprivateuseofmachinegunsuntil1927.SeeNotestoUniformMachineGunAct,Handbookof theNationalConferenceofCommissionersonUniformStateLawsandProceedingsofthe FortySecond Annual Conference 42728 (1932). The NationalFirearmsAct,48Stat.1236,regulatingmachinegunsatthefederallevel,followedin1934.

Howweapons are sorted between private andmilitaryuseshas changedover time.From theperspectiveof 2008,whenHellerwasdecided,lawsdatingtothe1920smayseemtobelong toahistorical traditionof regulation.But theywereenactedmorethan130yearsafterthestatesratifiedtheSecondAmendment. Why should regulations enacted 130yearsaftertheSecondAmendmentsadoption(andnearly60years after theFourteenths)havemorevalidity than thoseenacted another 90 years later?Nothing inHeller suggeststhataconstitutionalchallengetobansonprivatepossessionofmachinegunsbroughtduring the1930s,soonafter theirenactment,shouldhavesucceededthatthepassageoftime

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creates an easement across the Second Amendment. SeeUnitedStatesv.Skoien,614F.3d638(7thCir.2010)(enbanc).IfHighlandParks ordinance stays on the books for a fewyears,thatshouldntmakeiteithermoreorlessopentochallengeundertheSecondAmendment.

Plaintiffsaskustodistinguishmachinegunsfromsemiautomaticweapons on the ground that the latter are commonlyownedforlawfulpurposes.Cf.Heller,554U.S.at625.ThisdoesnottrackthewayHellerdistinguishedUnitedStatesv.Miller,307U.S.174(1939):TheCourttookfromMillertherulethattheSecondAmendmentdoesnotauthorizeprivatepersons to possess weapons such as machine guns andsawedoff shotguns that thegovernmentwouldnot expect(or allow) citizens to bring with them when the militia iscalled toservice.DuringProhibition theThompsonsubmachinegun(theTommygun)wasalltoocommoninChicago,butthatpopularitydidntgiveitaconstitutionalimmunity from the federalprohibitionenacted in1934. (TheTommygun isamachinegun,asdefinedby18U.S.C.921(23)and26U.S.C.5845(b),andgenerallyforbiddenby18U.S.C.922(a)(4),becauseitfiresmultipleroundswithasinglepullofthetrigger;liketheUziitiscalledasubmachineguntoindicate that it is smaller andmoremobile thanothermachineguns.TheAK47andAR15(M16)riflesinmilitaryusealso are submachine guns, though civilian versions are restricted to semiautomatic fire.)BothHellerandMiller contemplated that theweapons properly in private hands formilitiausemightchangethroughlegalregulationaswellasinnovationbyfirearmsmanufacturers.

Andrelyingonhowcommonaweaponisatthetimeoflitigation would be circular to boot. Machine guns arent

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commonly owned for lawful purposes today because theyare illegal; semiautomatic weapons with largecapacitymagazinesareownedmorecommonlybecause,untilrecently(insomejurisdictions),theyhavebeenlegal.Yetitwouldbe absurd to say that the reasonwhy aparticularweaponcanbebannedisthatthereisastatutebanningthatit,sothatit isnt commonly owned. A laws existence cant be thesourceofitsownconstitutionalvalidity.

HighlandParkcontendsthattheordinancemustbevalidbecauseweaponswith largecapacitymagazines are dangerous andunusual asHellerused thatphrase.YetHighlandPark concedesuncertaintywhether thebannedweaponsarecommonlyowned; if theyare (orwerebefore itenactedtheordinance),thentheyarenotunusual.Therecordshowsthatperhaps9%ofthenationsfirearmsownershaveassaultweapons, butwhat line separates common fromuncommonownershipissomethingtheCourtdidnotsay.Andtherecorddoesnotshowwhetherthebannedweaponsare dangerous compared with handguns, which are responsibleforthevastmajorityofgunviolenceintheUnitedStates:nearlyasmanypeoplearekilledannuallywithhandgunsinChicagoaloneashavebeenkilledinmassshootings(whereuse of a bannedweaponmightmake adifference)nationwideinmorethanadecade.SeeResearchandDevelopmentDivision,2011ChicagoMurderAnalysis,ChicagoPolice Department 23 (2012); J. Pete Blair & Katherine W.Schweit,AStudyofActiveShooterIncidentsintheUnitedStatesBetween 2000 and 2013, Federal Bureau of Investigation,UnitedStatesDepartmentofJustice9(2014).

The large fraction ofmurders committed by handgunsmayreflectthefactthattheyaremuchmorenumerousthan

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assaultweapons.Whatshouldmattertothedangerquestionishowdeadlyasingleweaponofonekindiscomparedwithasingleweaponofadifferentkind.Onthatsubjecttherecordprovidessomeevidence.Weknow,forexample,thatsemiautomatic gunswith largecapacitymagazines enableshooters to firebullets faster thanhandgunsequippedwithsmallermagazines.Wealsoknowthatassaultweaponsgenerally are chambered for small rounds (compared with alargecaliberhandgunorrifle),whichemergefromthebarrelwithlessmomentumandarelethalonlyat(relatively)shortrange. This suggests that they are less dangerous per bulletbuttheycanfiremorebullets.Andtheyaredesignedtosprayfireratherthantobeaimedcarefully.Thatmakesthemsimultaneouslymoredangerous tobystanders (and targetsof aspiring mass murderers) yet more useful to elderlyhouseholdersandotherswhoare too frightened todrawacarefulbead on an intruder orphysicallyunable todo so.Wheredoesthebalanceofdangerlie?

The problems that would be created by treating suchempirical issuesas for the judiciary rather than the legislatureand thepossibility thatdifferent judgesmight reachdramatically different conclusions about relative risks andtheir constitutional significanceillustrate why courtsshouldnotreadHellerlikeastatuteratherthananexplanationoftheCourtsdisposition.ThelanguagefromHellerthatwehavequoted isprecautionary: itwarnsagainst readingsthatgobeyondthescopeofHellersholdingthattheSecondAmendmentcreatesindividualrights,oneofwhichiskeepingoperablehandgunsathomeforselfdefense.Skoien,614F.3dat640.

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Heller does not purport to define the full scope of theSecondAmendment.TheCourthasnot tolduswhatotherentitlements theSecondAmendment createsorwhatkindsofgunregulationslegislaturesmayenact.InsteadtheCourthas alerted other judges, inHeller and again inMcDonald,that the SecondAmendment does not imperil every lawregulating firearms.McDonald, 561 U.S. at 786 (pluralityopinion);Heller,554U.S.at62627&n.26.Cautionary languageaboutwhathasbeenleftopenshouldnotbereadasifit were part of the Constitution or answered all possiblequestions.Itisenoughtosay,aswedidinSkoien,614F.3dat641, that at least some categorical limits on the kinds ofweapons that can be possessed are proper, and that theyneednotmirrorrestrictionsthatwereonthebooksin1791.

Thisdoesnotimplythatalawaboutfirearmsisproperifitpasses the rationalbasis testthat is,as longas itservessome conceivable valid function. See, e.g., Vance v. Bradley,440U.S.93(1979).Alllegislationrequiresarationalbasis;iftheSecondAmendment imposedonlyarationalbasisrequirement,itwouldntdoanything.Sofar,however,theJusticeshavedeclinedtospecifyhowmuchsubstantivereviewthe Second Amendment requires. Two courts of appealshaveappliedaversionofintermediate scrutinyand sustained limitson assaultweapons and largecapacitymagazines.SeeHeller v.District ofColumbia, 670F.3d 1244 (D.C.Cir. 2011) (a lawmaterially identical toHighlandParks isvalid);Fyockv.Sunnyvale,779F.3d991(9thCir.2015)(abanonmagazinesholdingmore than ten rounds is valid).Butinsteadof trying todecidewhatlevelofscrutinyapplies,andhowitworks,inquiriesthatdonotresolveanyconcretedispute,wethink itbettertoaskwhetheraregulationbansweapons that were common at the time of ratification or

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thosethathavesomereasonablerelationshiptothepreservation or efficiency of awell regulatedmilitia, seeHeller,554U.S. at 62225;Miller, 307U.S. at 17879, andwhetherlawabidingcitizensretainadequatemeansofselfdefense.

The features prohibited by Highland Parks ordinancewerenot common in1791.Mostgunsavailable then couldnotfiremorethanoneshotwithoutbeingreloaded;revolverswithrotatingcylinderswerentwidelyavailableuntiltheearly19th century.Semiautomaticgunsand largecapacitymagazines are more recent developments. Barrel shrouds,whichmakegunseasiertooperateeveniftheyoverheat,also are new; slowloading guns available in 1791 did notoverheat.Andmuzzlebrakes,whichpreventagunsbarrelfromrisinginrecoil,areanearly20thcenturyinnovation.

Some of the weapons prohibited by the ordinance arecommonlyusedformilitaryandpolicefunctions;theythereforebeara relation to thepreservationandeffectivenessofstate militias. But states, which are in charge of militias,shouldbeallowedtodecidewhencivilianscanpossessmilitarygrade firearms, soas tohave themavailablewhen themilitiaiscalledtoduty.(RecallthatthisishowHellerunderstood Miller.) And since plaintiffs do not distinguish betweenstatesandotherunitsoflocalgovernmentaccordingto them, an identical ban enacted by the State of Illinoiswouldalso runafoulof theSecondAmendmentweneednotdecidewhetheronlystates,which traditionally regulatemilitias,have thepower todeterminewhatkindsofweaponscitizensshouldhaveavailable.(SuchanargumentmightanywayhavebeenforeclosedbyIllinoisrecognitionthatlocalassaultweaponbansenactedbeforeJuly19,2013,arevalid;see430ILCS65/13.1(c).)

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Since thebannedweapons canbeused for selfdefense,wemustconsiderwhethertheordinanceleavesresidentsofHighlandParkamplemeans toexercise theinherent rightofselfdefensethattheSecondAmendmentprotects.Heller,554U.S.at628.Hellerheldthattheavailabilityoflonggunsdoes not save a ban on handgun ownership. The Justicestooknoteofsomeofthereasons,includingeaseofaccessibilityanduse,thatcitizensmightpreferhandgunstolonggunsfor selfdefense.ButHellerdidnot foreclose thepossibilitythatallowingtheuseofmostlonggunspluspistolsandrevolvers, as Highland Parks ordinance does, gives householdersadequatemeansofdefense.

Plaintiffsargue that theordinance substantially restrictstheiroptions for armed selfdefense.But that contention isunderminedbytheirargument,inthesamebreath,thattheordinance serves no purpose, because (they say) criminalswill justsubstitutepermitted firearms functionally identicalto the banned guns. If criminals can find substitutes forbanned assault weapons, then so can lawabiding homeowners.UnliketheDistrictofColumbiasbanonhandguns,HighlandParksordinance leavesresidentswithmanyselfdefenseoptions.

Trueenough,assaultweaponscanbebeneficial forselfdefense because they are lighter thanmany rifles and lessdangerous per shot than largecaliber pistols or revolvers.HouseholderstoofrightenedorinfirmtoaimcarefullymaybeabletowieldthemmoreeffectivelythanthepistolsJamesBond preferred. But assault weapons with largecapacitymagazinescanfiremoreshots,faster,andthuscanbemoredangerous inaggregate.Whyelseare they theweaponsofchoice in mass shootings?A ban on assault weapons and

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largecapacity magazines might not prevent shootings inHighlandPark(wheretheyarealreadyrare),but itmayreducethecarnageifamassshootingoccurs.

ThatlawssimilartoHighlandParksreducetheshareofguncrimesinvolvingassaultweaponsisestablishedbydata.SeeChristopherS.Koper,DanielJ.Woods&JefferyA.Roth,AnUpdatedAssessmentoftheFederalAssaultWeaponsBan:ImpactsonGunMarketsandGunViolence,19942003,Report totheNationalInstituteofJustice,UnitedStatesDepartmentofJustice3960 (June2004).There isalsosomeevidence linkingtheavailabilityofassaultweaponstogunrelatedhomicides.SeeArindrajitDube,OeindrilaDube&OmarGarcaPonce,CrossBorder Spillover:U.S.Gun Laws andViolence inMexico,107Am.Pol.Sci.Rev.397(2013)(findingthatMexican municipalities bordering American states without assault weapons bans experienced more gunrelated homicidesthanthoseborderingCalifornia,whichhadaban).

Plaintiffs nonetheless contend that the ordinance willhavenoeffectongunviolencebecause thesortof firearmsbanned inHighlandParkareavailableelsewhere in Illinoisand in adjacent states. But data show that most criminalscommit crimes close to home. See Elizabeth Groff & TomMcEwen,ExploringtheSpatialConfigurationofPlacesRelatedtoHomicideEvents,Report to theNational Instituteof Justice,United States Department of Justice 510, 4856 (March2006) (homicide);ChristopheVandeviver,StijnVanDaele&TomVanderBeken,WhatMakesLongCrimeTripsWorthUndertaking?BalancingCostsandBenefits inBurglars Journey toCrime,55Brit.J.Criminology399,401,40607(2015)(burglary).Local crimes aremost likely to be committed by localresidents, who are less likely to have access to firearms

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banned by a local ordinance. A ban on assault weaponswont eliminategunviolence inHighlandPark,but itmayreduce theoveralldangerousnessof crime thatdoesoccur.Plaintiffs argument proves far too much: it would implythatno jurisdictionother than theUnitedStatesasawholecan regulate firearms.But thatsnotwhatHellerconcluded,andnotwhatwehaveheldforlocalbansonothersubstances.SeeNationalPaint&CoatingsAssnv.Chicago,45F.3d1124(7thCir.1995)(spraypaint).

If ithasnoothereffect,HighlandParksordinancemayincreasethepublicssenseofsafety.Massshootingsarerare,buttheyarehighlysalient,andpeopletendtooverestimatethe likelihoodofsalientevents.SeeGeorgeF.Loewenstein,ChristopherK.Hsee,ElkeU.Weber&NedWelch,Risk asFeelings,127PsychologicalBulletin267,27576(2001);EricJ.Johnson, John Hershey, Jacqueline Meszaros & HowardKunreuther, Framing, Probability Distortions, and InsuranceDecisions,7J.Risk&Uncertainty35(1993).Ifabanonsemiautomatic guns and largecapacity magazines reduces theperceived risk fromamassshooting,andmakes thepublicfeelsaferasaresult,thatsasubstantialbenefit.Cf.Frankv.Walker,768F.3d744,751(7thCir.2014).McDonaldholds that theSecondAmendmentcreates in

dividual rights that canbe asserted against state and localgovernments.ButneitheritnorHellerattemptstodefinetheentire scope of the SecondAmendmentto take all questionsaboutwhichweaponsareappropriate forselfdefenseoutofthepeopleshands.HellerandMcDonaldsetlimitsontheregulationoffirearms;butwithinthoselimits,theyleavemattersopen.Thebestway toevaluate the relationamongassaultweapons,crime,andselfdefense is through thepo

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liticalprocessandscholarlydebate,notbyparsingambiguouspassages in the SupremeCourts opinions.The centralroleofrepresentativedemocracy isno lesspartof theConstitution than is theSecondAmendment:when there isnodefinitive constitutional rule,mattersare left to the legislative process. See McCulloch v. Maryland, 17 U.S. 316, 407(1819).

Anotherconstitutionalprincipleisrelevant:theConstitutionestablishesafederalrepublicwherelocaldifferencesarecherishedaselementsof liberty,rather thaneliminated inasearch fornationaluniformity.McDonald circumscribes thescopeofpermissibleexperimentationbystateandlocalgovernments,but itdoesnot foreclose allpossibilityofexperimentation.Within the limits established by the Justices inHeller andMcDonald, federalism and diversity still have aclaim.WhetherthoselimitsshouldbeextendedisintheendaquestionfortheJustices.Givenourunderstandingofexistinglimits,thejudgmentis

AFFIRMED.

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MANION, Circuit Judge, dissenting.

By prohibiting a class of weapons commonly usedthroughout the country, Highland Parks ordinance infringesupon the rights of its citizens to keep weapons in their homesfor the purpose of defending themselves, their families, andtheir property. Both the ordinance and this courts opinionupholding it are directly at odds with the central holdings ofHeller and McDonald: that the Second Amendment protects apersonal right to keep arms for lawful purposes, most notablyfor self-defense within the home. District of Columbia v. Heller,554 U.S. 570, 635 (2008); McDonald v. City of Chicago, 561 U.S.767, 780 (2010). For the following reasons, I respectfullydissent.

Unlike public life where the cities and states have broadauthority to regulate, the ultimate decision for what constitutesthe most effective means of defending ones home, family, andproperty resides in individual citizens and not in the govern-ment. The Heller and McDonald opinions could not be cleareron this matter. Heller, 554 U.S. at 635; McDonald, 561 U.S. at 780.The extent of dangerreal or imaginedthat a citizen faces athome is a matter only that person can assess in full.

To be sure, assault rifles and large capacity magazines aredangerous. But their ability to project large amounts of forceaccurately is exactly why they are an attractive means of self-defense. While most persons do not require extraordinarymeans to defend their homes, the fact remains that some do.Ultimately, it is up to the lawful gun owner and not thegovernment to decide these matters. To limit self-defense toonly those methods acceptable to the government is to effect anenormous transfer of authority from the citizens of this countryto the governmenta result directly contrary to our constitu-

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tion and to our political tradition. The rights contained in theSecond Amendment are fundamental and necessary to oursystem of ordered liberty. McDonald, 561 U.S. at 778. Thegovernment recognizes these rights; it does not confer them.

Fundamentally, I disagree with the courts reading ofUnited States v. Miller, 307 U.S. 174 (1939), as it pertains to thenature of the rights recognized by the Second Amendment.Long ago, in Miller, the Supreme Court expressly tied SecondAmendment rights to ones association with a state militia. InHeller, the District of Columbia relied on this holding fromMiller as justification for an ordinance restricting the rights ofits citizens to keep and use handguns. 554 U.S. at 577, 587. TheSupreme Court disagreed. Id. at 622. Indeed, the centralholding of Heller is that citizens have an individual right tokeep and bear firearms that does not depend upon anyassociation with a militia. In so holding, Heller effectively laidto rest the notion of collective Second Amendment rights, andthen McDonald placed a wreath on its grave.

Here, the court comes not to bury Miller but to exhume it.To that end, it surveys the landscape of firearm regulations asif Miller were still the controlling authority and Heller were amere gloss on it. The courts reading culminates in a novel test:whether the weapons in question were common at the time ofratification or have some reasonable relationship to thepreservation or efficiency of a well regulated militia, andwhether law-abiding citizens retain adequate means of self-defense. Ante at 78.

The problem is Heller expressly disclaimed two of the threeaspects of this test; and it did so not as a matter of simplehousekeeping, but as an immediate consequence of its centralholding. It held as bordering on the frivolous arguments that

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recognized a right to bear only those arms in existence at thetime of ratification. Heller, 554 U.S. at 582 (Some have madethe argument, bordering on the frivolous, that only those armsin existence in the 18th century are protected by the SecondAmendment.). Likewise, it expressly overruled any readingof the Second Amendment that conditioned the rights to keepand bear arms on ones association with a militia. Id. at 612. (Itis not possible to read this as discussing anything other than anindividual right unconnected to militia service.). For thisreason, there is no way to square this courts holding with theclear precedents of Heller and McDonald.

Heller and McDonald

We turn to the controlling precedents. Although the Hellerdecision is of recent vintage, the rights recognized by itforindividual citizens to keep and bear arms lawfullyare not.Heller certainly did not create them in 2008, nor did the SecondAmendment in 1791. These rights are fundamental anddeeply rooted in this Nations history and tradition. McDon-ald, 561 U.S. at 768. They are natural rights that pre-existed theSecond Amendment. Heller, 554 U.S. at 592 (quoting UnitedStates v. Cruikshank, 92 U.S. 542, 553 (1876) that the right tocarry weapons is not dependent upon [the Second Amend-ment] for its existence.); Ezell v. City of Chicago, 651 F.3d 684,700 (7th Cir. 2011). This understanding persisted and wasshared by the Framers of the Fourteenth Amendment, whocounted these among the fundamental rights necessary to oursystem of ordered liberty. McDonald, 561 U.S. at 778. Theserights exist not merely in the abstract, but are exercised on adaily basis; indeed, a detailed list of the various ways in whichAmericans use weapons lawfully would be prohibitively long.

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Which brings us to Friedman, our plaintiff. He is a residentof Highland Park who owns an AR rifle and large capacitymagazines of the types prohibited by the ordinance. Friedmancontendsand the city does not contestthat he keeps theweapons in his home for the defense of his family. Prior to thepassage of the ordinance, he used these weapons lawfully.Now, under the terms of the ordinance, Friedman has ninetydays to remove the weapons beyond Highland Parks citylimits or to surrender them to the Chief of Police. 136.005(D)(1), (3). Should he fail to do so, he faces a misdemeanorconviction punishable by up to six months in jail and a fine ofbetween $500 and $1,000. Id. at (F).

The Framework

In Ezell, we stated that a court must first identify whetherthe regulated activity falls within the scope of the SecondAmendment. 651 F.3d at 701. However, where, as here, theactivity is directly tied to specific classes of weapons, we arefaced with an additional threshold matter: whether the classesof weapons regulated are commonly used by law-abidingcitizens. If the weapons in question (assault rifles and high-capacity magazines) are not commonly used by law-abidingcitizens, then our inquiry ends as there is no Second Amend-ment protection and the regulation is presumed to be lawful. 1

This question is best viewed as a separate, threshold matter than as an1

aspect of the regulated activity. An example bears this out: because handgrenades have never been commonly used by law-abiding citizens forlawful purposes, it matters not whether the regulation is an ordinanceprohibiting ownership of such weapons, a licensing scheme impedingaccess to them, or a regulation setting conditions on their manufacture orsale: the Second Amendment does not apply to such inquiry because thetype of weapon is not covered by it.

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If the weapons are covered by the Second Amendment, wethen examine whether the asserted right (i.e., the activityaffected by the regulation) is likewise covered. To do this, weexamine how the asserted right was publicly understood whenthe Fourteenth Amendment was ratified (or Second Amend-ment in the case of federal regulation) to discern whether theright (or some analogue) has been exercised historically. Id. at702. This answer requires a textual and historical inquiry intothe original meaning of the Second Amendment. Id. (citingHeller, 554 U.S. at 63435). Significantly, the plaintiff need notdemonstrate the absence of regulation in order to prevail; theburden rests squarely on the government to establish that theactivity has been subject to some measure of regulation. Id.

Finally, if we conclude that the weapons and asserted rightat issue are covered by the Second Amendment, then we mustassign a level of scrutiny appropriate to the right regulated anddetermine whether the regulation survives such scrutiny. Ezell,651 F.3d at 70203. Conversely, if the activity falls outside ofthe scope of the Second Amendment as understood at therelevant historical moment (1868 with the passage of theFourteenth Amendment), the regulated activity is categoricallyunprotected and our inquiry ends. Id. at 703.

In summary, this framework involves up to three separatesteps for a reviewing court. A shorthand of it runs as follows:

1. determine whether the weapon is commonly used bylaw-abiding citizens;

2. review the original public meaning of the asserted right(i.e. the regulated activity); and, if both the weapon andasserted right are covered;

3. assign and apply a standard of scrutiny.

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Having established the appropriate framework, it is time toexamine Highland Parks ordinance in light of the SecondAmendment.

Common Use

The regulated weapons: In Miller, the Supreme Courtupheld a prohibition against short-barreled shotguns becausethe Second Amendment did not protect those weapons thatwere not typically possessed as ordinary military equipmentfor use in a state militia. 307 U.S. at 178. The common usetest is the offspring of this decision and asks whether aparticular weapon is commonly used by law-abiding citizensfor lawful purposes. Heller jettisoned Millers requirement of2

a nexus between the weapon and military equipment, butotherwise adopted the test with a focus on whether theweapon in question has obtained common use by law abidingcitizens. Heller, 554 U.S. 623, 627.

Here, the evidentiary record is unequivocal: a statisticallysignificant amount of gun owners such as Friedman use semi-automatic weapons and high-capacity magazines for lawfulpurposes. This evidence is sufficient to demonstrate that these3

It is of no significance that other courts have worded this inquiry2

differently, asking whether the regulated weapons are dangerous andunusual. All weapons are presumably dangerous. To say that a weapon isunusual is to say that it is not commonly used for lawful purposes.

Insofar as the evidentiary record addresses the matter, it supports the3proposition that AR-rifles are commonly used by law-abiding citizens. Outof 57 million firearm owners in the United States, it is estimated that 5million own AR-type rifles. (A. 66). Firearm industry analysts estimate that5,128,000 AR-type rifles were produced in the United States for domesticsale, while an additional 3,415,000 were imported. (A. 65; 73). Between 2008

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weapons are commonly used and are not unusual. In otherwords, they are covered by the Second Amendment. Whetheror how people might use these weapons for illegal purposesprovides a basis for a state to regulate them, but it has nobearing on whether the Second Amendment covers them.Unfortunately, the court effectively inverts this equation andconsiders first the potential illegal uses (here: catastrophicpublic shootings) and then doubles back to determine whetherattendant lawful use by ordinary citizens might be sufficient towarrant some type of Second Amendment protection.

An example: At oral argument, there was much discussionabout various longstanding regulations prohibiting suchweapons as machine guns. The crux of this discussion waswhether machine guns would have satisfied the common usetest during the 1930s when they were the weapon of choiceamong gangsters in Chicago. But this misses the point: itmatters not whether fifty or five thousand mob enforcers useda particular weapon, the question is whether a critical mass oflaw-abiding citizens did. In the case of machine guns, nobodyhas argued, before or since, that ordinary citizens used theseweapons for lawful purposes, and so they have been rightlydeemed not to fall within the ambit of the Second Amendment.Had there been even a small amount of citizens who used themfor lawful purposes, then the Second Amendment might havecovered them. The fact that gangsters used them to terrorizepeople might have served as ample justification to regulate

and 2012, approximately 11.4% of firearms manufactured in the UnitedStates were AR-type rifles. A survey of randomly selected United Statesresidents demonstrated that an estimated 11,976,702 million personsparticipated in target shooting with an AR-type rifle in 2012. (A. 68; 102).The evidentiary record contains no entries disputing these estimates.

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them (or even prohibit them outright), but it has no bearing onwhether they are covered under the Second Amendment. 4

The court also objected because the common-use test is acircular one. Perhaps so, but the law is full of such tests, and5

this one is no more circular than the reasonable expectation ofprivacy or the reasonable juror. The fact that a statisticallysignificant number of Americans use AR-type rifles and large-size magazines demonstrates ipso facto that they are used forlawful purposes. Our inquiry should have ended here: theSecond Amendment covers these weapons.

Weapons can be commonly used by both criminals and law-abiding4

citizens. For example, the court correctly notes that handguns have longbeen the preferred weapon for criminals and are responsible for the vastmajority of gun violence in the United States . Ante at 5. This, of course,is the same type of weapon that McDonald recognized as covered under theSecond Amendment because it was (and still is) the most preferred firearmin the nation. 561 U.S. 767. In evaluating common use, McDonaldconsidered as relevant only use by law-abiding citizens.

Circularity results from the obvious fact that common use is aided5

when a weapon is legal and precluded when it is not. The argument goesthat authorities are free to regulate irrespective of the Second Amendmentuntil a weapon obtains a certain quotient of use by law-abiding citizens.After that, they are too late as Second Amendment protections obtain.Under this view, common use is the effect of law rather than the cause. Butthis scenario overstates the evolution of technology among weapons.Overwhelmingly, newly developed weapons are merely updated versionsof weapons already in the marketplace. It is rare to have a weapon come tomarket in such form that it has no precursors subject to regulation. Weaponmanufacturers are unlikely to expend funds to develop and bring to marketvariations on classes of weapons that are currently prohibited.

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Original Meaning of Asserted Rights

We follow Hellers example examining the original meaningof the right asserted. 554 U.S. at 576. Heller examined the rightto keep arms as it was understood in 1791 when the SecondAmendment was ratified. Significantly, Heller expresslyrejected the view that the Second Amendment contained aunitary right and instead noted that lawmakers of the foundingperiod routinely grouped multiple, related, rights under asingular right. Heller, 554 U.S. at 591. Because the rights in theSecond Amendment are many and varied, a court mustidentify the specific right implicated by a regulation.

To examine the scope of the right, we must first identify theregulated activity. Here, the relevant section of the ordinanceprovides that: No person shall manufacture, sell, offer ordisplay for sale, give, lend, transfer ownership of, acquire orpossess any assault weapon or large capacity magazine. 136.005(B). Plaintiffs do not challenge the provisions associatedwith the manufacture or sale of such weapons in HighlandPark and so we need not address the scope of those rights.Instead, we isolate our attention on the language in the statutethat forbids a citizen from acquiring or possessing any assaultweapon or large-capacity magazine.

The Right to Keep Arms v. The Right to Bear Arms

Heller defined the term to keep arms to mean to haveweapons, and to bear arms as to carr[y] weapons. 554U.S. at 582; 589. Though similar, these activities are notidentical; for instance, an ordinance that prohibits the carriageor use of weapons but not outright possession would notimplicate the right to keep arms, but only the right to bearthem in certain locations. Highland Parks ordinance implicates

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both rights. Leaving aside the other prohibitions, the ordinanceprohibits the acqui[sition] or possess[ion of] any assaultweapon or large capacity magazine. 136.005 (B). Notablyabsent from this provision is any qualifying language: all formsof possession are summarily prohibited. Other laws notwith-standing, the ordinance makes no distinction between storinglarge-capacity magazines in a locked safe at home and carryinga loaded assault rifle while walking down Main Street. Bothconstitute possession and are prohibited outright.

Of course, our inquiry centers on the understanding of theright to keep arms in 1868 when the Fourteenth Amendmentbecame law. Fortunately, we need not engage in originalhistorical analysis because the Supreme Court in McDonald hasdone so on this exact questionalbeit in the context of anordinance restricting the right to keep handguns in the home.McDonald concluded that the right to keep a weapon in oneshome for the purposes of self-defense is the broadest rightunder the Second Amendment. It noted:

Self-defense is a basic right, recognized by many legalsystems from ancient times to the present day, and inHeller, we held that individual self-defense is the centralcomponent of the Second Amendment right. Explain-ing that the need for defense of self, family, and prop-erty is most acute in the home we found that thisright applies to handguns because they are the mostpreferred firearm in the nation to keep and use for theprotection of ones home and family . Thus, weconcluded, citizens must be permitted to use [hand-guns] for the core lawful purpose of self-defense.

McDonald, 561 U.S. at 76768 (citing Heller, 554 U.S. at 630)(emphasis in original).

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Rather than merely regulate how weapons are to be storedat home, Highland Parks ordinance goes further than the onethat the Court found unconstitutional in Heller: it prohibits anyform of possession of these weapons. It is immaterial to thisinquiry that the regulations targeted different classes ofweapons (handguns versus assault rifles and large-capacitymagazines) because the issue at this step involves the scope ofthe protected activitythe right to keep arms for self-defensenot the class of weapons involved with such activity;that inquiry is relevant at the final step in examining thepurpose for the regulation.

If the right to keep arms in the home for the purpose of self-defense obtains the broadest protections under the SecondAmendment, it follows by implication that regulations affect-ing the rights to carry (bear) arms outside of the home aregiven greater deference. Indeed, the vast majority of thelongstanding regulations deemed presumptively lawful byHeller and McDonald are regulations against the use andcarriage of weapons. See, e.g., Heller, 554 U.S. at 62627; Hellerv. District of Columbia, 670 F.3d 1244, 1253 (D.C. Cir. 2011)(Heller II); United States v. Rene E., 583 F.3d 8, 12 (1st Cir.2009). Traditionally, these regulations limited the carriage ofweapons in sensitive locations such as courthouses or banneddueling or carrying concealed weapons such as pocket pistolsor bowie knives. See Robert Leider, Our Non-Originalist Rightto Bear Arms, 89 Ind. L. J. 1587, 1601 (2014). In contrast, thoseregulations prohibiting ownership of weapons outrightfocused on the status of the regulated party as a felon or aperson ill-suited for gun ownership due to mental infirmities.Id. In short, outside of weapons deemed dangerous or unusual,there is no historical tradition supporting wholesale prohibi-tions of entire classes of weapons.

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Standards of Scrutiny

Insofar as Highland Parks ordinance implicates Friedmansright to keep assault rifles and large-capacity magazines in hishome for the purposes of self-defense, it implicates a funda-mental right and is subject to strict scrutiny. See Clark v. Jeter,486 U.S. 456, 461 (1988) (classifications affecting fundamentalrights are given the most exacting scrutiny) (citation omitted).Of course, other courts have applied lower standards of revieweven in cases where they recognized that the regulationimpinged upon a fundamental right under the Second Amend-ment. See, e.g., Heller II, 670 F.3d at 1256.

The distinction here is a matter of kind and not degree;rather than limiting the terms under which a fundamental rightmight be exercised, Highland Parks ordinance serves as a totalprohibition of a class of weapons that Friedman used to defendhis home and family. The right to self-defense is largelymeaningless if it does not include the right to choose the mosteffective means of defending oneself. For this reason, Hellerstruck down a District of Columbia ordinance requiring thatfirearms in the home be rendered and kept inoperable at alltimes because the ordinance makes it impossible for citizensto use [the regulated weapons] for the core lawful purpose ofself-defense . Heller, 554 U.S. at 630. Because HighlandParks ordinance cuts right to the heart of the Second Amend-ment, it deserves the highest level of scrutiny.

Under strict scrutiny, Highland Park must prove that itslaw furthers a compelling government interest and mustemploy the least restrictive means to achieve that end. UnitedStates v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813(2000). Accordingly, Highland Park claims that the lawfurthers the compelling interest of preventing public shootings

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such as those witnessed at the movie theater in Aurora,Colorado and at Sandy Hook Elementary School in Connecti-cut. No problem so far: public safety is an obvious compellinginterest in this case. That the regulated weapons are capable ofinflicting substantial force is no doubt relevant in forming abasis for the City to regulate their use within its public spaces.

The difficulties arise in the next prong; rather than beingthe least restrictive means to address these particular publicsafety issues, Highland Parks ordinance serves as the bluntestof instruments, banning a class of weapons outright, andrestricting the rights of its citizens to select the means by whichthey defend their homes and families. Here, one need not parseout the various alternatives that Highland Park could havechosen to achieve these ends; any alternative would have beenless restrictive. This can only yield one conclusion: the provi-sions in Highland Parks ordinance prohibiting its citizensfrom acquiring or possessing assault rifles or large-capacitymagazines are unconstitutional insofar as they prohibit citizensfrom lawfully keeping such weapons in their homes.

Insofar as Highland Parks ordinance implicates the rightto carry or use these weapons outside of ones property, it issubject to intermediate scrutiny. To satisfy this standard,Highland Park must show that the restrictions are substan-tially related to an important government objective. Clark, 486U.S. at 461. As noted earlier, restricting the use and carriage ofassault rifles and large-capacity magazines in Highland Parkis related to an important government objectiveprotectingthe safety of its citizens. Unlike strict scrutiny analysis,intermediate scrutiny does not require that the ordinance bethe least restrictive means, but that it serve an important

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government interest in a way that is substantially related tothat interest. Univ. of N.Y. v. Fox, 492 U.S. 469, 477 (1989).

As other courts have noted, restrictions against assaultweapons and large capacity magazines can survive intermedi-ate scrutiny. Heller II, 670 F.3d at 1244. Here, Highland Parkhas a legitimate interest in ensuring the safety of its citizens inschools and other public places. For this reason, there is noproblem concluding that the ordinance, insofar as it regulatesthe possession and use of the weapons in public places, cohereswith the Second Amendment.

Several other matters require attention as well.

The rights in the Second Amendment: The court treats theserights as unitary and undifferentiated. In so doing, it makes nodistinction between the right to keep arms to defend oneshome and the right to use those arms in a constitutionallypermissible manner. But the Supreme Court has establishedclear parameters: the right to keep arms in the home for self-defense obtains the broadest protection, McDonald, 561 U.S. at767 (noting that the need for defense of self, family, andproperty is most acute in the home ), while other rightsunder the Second Amendment are not unlimited but aresubject to appropriate regulation. Here, the court makes noattempt to parse out the various activities prohibited byHighland Parks ordinance; instead it treats as identicalactivities as diverse as keeping weapons in the home andmanufacturing them for sale. Heller requires courts to identifythe specific activity regulated; the court here failed to do this.

The effect of longstanding regulations: It is important to notethat Heller, for good reasons, did not seek to dismantle inwhole the nexus of existing firearms regulations. Instead, it

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sought to recast the focus of courts away from policy consider-ations and towards the original meaning of the SecondAmendment. In so doing, it left intact existing regulations andstated that longstanding ones are accorded a presumption ofconstitutionality. Heller, 554 U.S. at 62627.

But a presumption is a very different thing from anassertion: we presume that laws are constitutional until andunless the regulation is challenged and a competent courtinforms us otherwise. In other words, it is a very differentthing to presume a statute to be constitutional than to posi-tively assert that it is. Here the court outlines various long-standing regulations and then proceeds to use them as anavigational chart to determine the confines of permissiblefirearm regulation. All of this culminates in a syllogism thatruns, roughly speaking, as follows: machine guns have beenillegal under law; assault weapons are similar to machine guns;therefore, assault rifles may be prohibited under law. Nothingin Heller or McDonald supports this as an appropriate frame-work.

The evidentiary record: The court ignores the central piece ofevidence in this case: that millions of Americans own and useAR-type rifles lawfully. (A.6573). Instead, it adoptsas thefinal word on the matter and with no discussionHighlandParks position that the evidence is inconclusive on thisquestion; and it does this notwithstanding the fact that all ofthe relevant evidence supports defendants contention that AR-type rifles are commonly used throughout this nation. Addi-tionally, it posits as self-evident a comparison betweensemiautomatic weapons and machine guns despite the fact thatthe existing science is, at best, contested on this. More signifi-

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cantly, the only relevant evidence in record disputes thiscontention.6

The post-Heller framework: The court wholly disregards the(albeit still nascent) post-Heller framework established in thisand our sister courts in favor of its own, unique path. In sodoing, it offers a methodology in direct conflict to that offeredby this circuit in previous cases, see, e.g., Ezell, 651 F.3d 684, andout of step with other circuits, United States v. Marzzarella, 614F.3d 85 (3d Cir. 2010); Heller II, 670 F.3d 1244.

Judicial findings: Finally, the court justifies the ordinance asvalid because it may increase the publics sense of safety.Perhaps so, but there is no evidentiary basis for this finding.The court is not empowered to uphold a regulation as constitu-tional based solely on its ability to divine public sentimentabout the matter.

As noted earlier, the post-Heller framework is very much awork in progress and will continue to be refined in subsequentlitigation. Neither Heller nor McDonald purported to resolveevery matter involving the regulation of weapons; but they areclear about one thing: the right to keep arms in the home forself-defense is central to the Second Amendment and is notconditioned on any association with a militia. Instead offollowing this clear principle, the court engages in a gerryman-dered reading of those cases to hold directly contrary to their

Plaintiffs submitted a video demonstration highlighting some of the6

differences between semiautomatic, AR-type rifles and automatic rifles. (A.63). Automatic weapons are selective-fire weapons where a single pull ofthe trigger will fire continuously until all ammunition is exhausted. (A. 21)In contrast, a semiautomatic weapon only allows for one round per pull. (A.19).

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precedents. In so doing, it upholds an ordinance that violatesthe Second Amendment rights of its citizens to keep arms intheir homes for the purpose of defending themselves, theirfamilies, and their property.

I respectfully dissent.