Judge Stephen P. McGlynn, Southern District of Illinois, Blocks Illinois Assault Weapons Ban

BY Herschel Smith
11 months, 3 weeks ago

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


Comments

  1. On April 29, 2023 at 12:17 am, Dan said:

    The issue is we are forced to rely on judges and lawsuits to protect our rights. Eventually the left will succeed in replacing ALL the judges with THEIR sycophants. Then we will be truly and totally screwed.

  2. On April 29, 2023 at 8:55 am, Old Patriot said:

    The “Militia” is supposed to be a part of the armed forces of the United States, to supplement that force in time of war, and to confront the enemies of the United States, both foreign and domestic. Congress is tasked with many duties regarding “the organizing, arming, and disciplining” of the militia (Article I, section 8, para 16). Since the formation of the standing Armed Forces, Congress has not only neglected this duty, it has actively gone out of its way to suppress the general militia.

    Personally, I believe that, since the militia (consisting of “all males between the age of 16 and 45”), if it is truly supposed to augment and support the armed forces, should have the same weapons and training as the standing military forces. Also, the rules need to be changed to extend the ranks of the militia to all adults between the ages of 15 and 65, including both mental and physical training, including firearms training, as part of the public school curriculum and military “clubs” and organizations.

    Wouldn’t THAT put libs’ panties in the blender!

  3. On April 29, 2023 at 10:31 am, PGF said:

    @OP, they already know what’s in your first sentence and that’s why they want the guns. Though China or Russia may have a degree of designs upon the the United States, our greatest enemy is Washing and its standing armies. They also know we know that.

  4. On April 29, 2023 at 10:51 am, Grunt said:

    It took him 29 pages to write Shall Not Be Infringed.

  5. On April 29, 2023 at 10:56 am, Herschel Smith said:

    That’s okay. He wrote it.

    And taking 29 pages makes sure that he doesn’t get appealed on faulty logic. Getting appealed only means they don’t like his decision. He did his job, and very well at that.

  6. On April 29, 2023 at 5:23 pm, Steady Steve said:

    I believe the Supreme Court has already said that blatantly Unconstitutional laws may be ignored.

  7. On April 29, 2023 at 6:34 pm, PGF said:

    There are up to 40 million braced (or used to be braced) pistols. It sounds to me, according to this ruling, like a federal judges are on the verge of declaring all those barrels under 16 inches and standard multiposition butt stocks as both corollary and in common use. The last day of sbr regulation is coming simply looking at the several lower court opinions since Heller and Bruen.

  8. On April 29, 2023 at 11:05 pm, Steve Ramsey said:

    I remain amazed that even with the number of wins we are achieving after decades of losing that so many can do nothing more than complain or try to shoot holes in this decision, or otherwise bitch and moan.

    Put away your pocket constitutions for five minutes and come into the light.

  9. On April 30, 2023 at 4:22 pm, Lewis Medlock said:

    East St. Louis?!
    Where you will need an “assault weapon” as part of your kit.
    You will get pulled over for driving while white there and asked if you are looking to get served by the D Boys (dealers).
    Scary Gary IN is about the same but North and right by CPUSA central HQ Chicago.

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You are currently reading "Judge Stephen P. McGlynn, Southern District of Illinois, Blocks Illinois Assault Weapons Ban", entry #34787 on The Captain's Journal.

This article is filed under the category(s) Second Amendment and was published April 28th, 2023 by Herschel Smith.

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