In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3091
ARIE S. FRIEDMAN and ILLINOIS STATE RIFLE ASSOCIATION,
Plaintiffs‐Appellants,
v.
CITY OF HIGHLAND PARK, ILLINOIS,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 9073 — John W. Darrah, Judge.
____________________
ARGUED JANUARY 22, 2015 — DECIDED APRIL 27, 2015
____________________
Before EASTERBROOK, MANION, and WILLIAMS, Circuit
Judges.
EASTERBROOK, Circuit Judge. The City of Highland Park
has an ordinance (§136.005 of the City Code) that prohibits
possession of assault weapons or large‐capacity magazines
(those that can accept more than ten rounds). The ordinance
defines an assault weapon as any semi‐automatic gun that
can accept a large‐capacity magazine and has one of five
2 No. 14‐3091
other features: a pistol grip without a stock (for semi‐
automatic pistols, the capacity to accept a magazine outside
the pistol grip); a folding, telescoping, or thumbhole stock; a
grip for the non‐trigger hand; a barrel shroud; or a muzzle
brake or compensator. Some weapons, such as AR‐15s and
AK‐47s, are prohibited by name. Arie Friedman, who lives in
Highland Park, owned a banned rifle and several large‐
capacity magazines before the ordinance took effect, and he
wants to own these items again; likewise members of the Il‐
linois State Rifle Association, some of whom live in High‐
land Park. Plaintiffs asked the district court to enjoin en‐
forcement of the ordinance, arguing that it violates the Con‐
stitution’s Second Amendment, see District of Columbia v. Hel‐
ler, 554 U.S. 570 (2008), applied to the states by the Four‐
teenth. See McDonald v. Chicago, 561 U.S. 742 (2010).
Heller holds that a law banning the possession of hand‐
guns in the home (or making their use in the home infeasi‐
ble) violates the individual right to keep and bear arms se‐
cured by the Second Amendment. But the Court added that
this is not a “right to keep and carry any weapon whatsoever
in any manner whatsoever and for whatever purpose.” 554
U.S. at 626. It cautioned against interpreting the decision to
cast doubt on “longstanding prohibitions”, including the
“historical tradition of prohibiting the carrying of ‘danger‐
ous and unusual weapons’”. Id. at 623, 627. It observed that
state militias, when called to service, often had asked mem‐
bers to come armed with the sort of weapons that were “in
common use at the time”, id. at 624, and it thought these
kinds of weapons (which have changed over the years) are
protected by the Second Amendment in private hands, while
military‐grade weapons (the sort that would be in a militia’s
armory), such as machine guns, and weapons especially at‐
No. 14‐3091 3
tractive to criminals, such as short‐barreled shotguns, are
not. Id. at 624–25.
Plaintiffs contend that there is no “historical tradition” of
banning possession of semi‐automatic guns and large‐
capacity magazines. Semi‐automatic rifles have been mar‐
keted for civilian use for over a hundred years; Highland
Park’s ordinance was enacted in 2013. But this argument
proves too much: its logic extends to bans on machine guns
(which can fire more than one round with a single pull of the
trigger, unlike semi‐automatic weapons that chamber a new
round automatically but require a new pull to fire). Heller
deemed a ban on private possession of machine guns to be
obviously valid. 554 U.S. at 624. But states didn’t begin to
regulate private use of machine guns until 1927. See Notes to
Uniform Machine Gun Act, Handbook of the National Confer‐
ence of Commissioners on Uniform State Laws and Proceedings of
the Forty‐Second Annual Conference 427–28 (1932). The Na‐
tional Firearms Act, 48 Stat. 1236, regulating machine guns at
the federal level, followed in 1934.
How weapons are sorted between private and military
uses has changed over time. From the perspective of 2008,
when Heller was decided, laws dating to the 1920s may seem
to belong to a “historical tradition” of regulation. But they
were enacted more than 130 years after the states ratified the
Second Amendment. Why should regulations enacted 130
years after the Second Amendment’s adoption (and nearly 60
years after the Fourteenth’s) have more validity than those
enacted another 90 years later? Nothing in Heller suggests
that a constitutional challenge to bans on private possession
of machine guns brought during the 1930s, soon after their
enactment, should have succeeded—that the passage of time
4 No. 14‐3091
creates an easement across the Second Amendment. See
United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc).
If Highland Park’s ordinance stays on the books for a few
years, that shouldn’t make it either more or less open to chal‐
lenge under the Second Amendment.
Plaintiffs ask us to distinguish machine guns from semi‐
automatic weapons on the ground that the latter are com‐
monly owned for lawful purposes. Cf. Heller, 554 U.S. at 625.
This does not track the way Heller distinguished United States
v. Miller, 307 U.S. 174 (1939): The Court took from Miller the
rule that the Second Amendment does not authorize private
persons to possess weapons such as machine guns and
sawed‐off shotguns that the government would not expect
(or allow) citizens to bring with them when the militia is
called to service. During Prohibition the Thompson subma‐
chine gun (the “Tommy gun”) was all too common in Chica‐
go, but that popularity didn’t give it a constitutional immun‐
ity from the federal prohibition enacted in 1934. (The Tom‐
my gun is a machine gun, as defined by 18 U.S.C. §921(23)
and 26 U.S.C. §5845(b), and generally forbidden by 18 U.S.C.
§922(a)(4), because it fires multiple rounds with a single pull
of the trigger; like the Uzi it is called a “submachine gun” to
indicate that it is smaller and more mobile than other ma‐
chine guns. The AK‐47 and AR‐15 (M16) rifles in military use
also are submachine guns, though civilian versions are re‐
stricted to semi‐automatic fire.) Both Heller and Miller con‐
templated that the weapons properly in private hands for
militia use might change through legal regulation as well as
innovation by firearms manufacturers.
And relying on how common a weapon is at the time of
litigation would be circular to boot. Machine guns aren’t
No. 14‐3091 5
commonly owned for lawful purposes today because they
are illegal; semi‐automatic weapons with large‐capacity
magazines are owned more commonly because, until recent‐
ly (in some jurisdictions), they have been legal. Yet it would
be absurd to say that the reason why a particular weapon
can be banned is that there is a statute banning that it, so that
it isn’t commonly owned. A law’s existence can’t be the
source of its own constitutional validity.
Highland Park contends that the ordinance must be valid
because weapons with large‐capacity magazines are “dan‐
gerous and unusual” as Heller used that phrase. Yet High‐
land Park concedes uncertainty whether the banned weap‐
ons are commonly owned; if they are (or were before it en‐
acted the ordinance), then they are not unusual. The record
shows that perhaps 9% of the nation’s firearms owners have
assault weapons, but what line separates “common” from
“uncommon” ownership is something the Court did not say.
And the record does not show whether the banned weapons
are “dangerous” compared with handguns, which are re‐
sponsible for the vast majority of gun violence in the United
States: nearly as many people are killed annually with hand‐
guns in Chicago alone as have been killed in mass shootings
(where use of a banned weapon might make a difference)
nationwide in more than a decade. See Research and Devel‐
opment Division, 2011 Chicago Murder Analysis, Chicago Po‐
lice Department 23 (2012); J. Pete Blair & Katherine W.
Schweit, A Study of Active Shooter Incidents in the United States
Between 2000 and 2013, Federal Bureau of Investigation,
United States Department of Justice 9 (2014).
The large fraction of murders committed by handguns
may reflect the fact that they are much more numerous than
6 No. 14‐3091
assault weapons. What should matter to the “danger” ques‐
tion is how deadly a single weapon of one kind is compared
with a single weapon of a different kind. On that subject the
record provides some evidence. We know, for example, that
semi‐automatic guns with large‐capacity magazines enable
shooters to fire bullets faster than handguns equipped with
smaller magazines. We also know that assault weapons gen‐
erally are chambered for small rounds (compared with a
large‐caliber handgun or rifle), which emerge from the barrel
with less momentum and are lethal only at (relatively) short
range. This suggests that they are less dangerous per bul‐
let—but they can fire more bullets. And they are designed to
spray fire rather than to be aimed carefully. That makes them
simultaneously more dangerous to bystanders (and targets
of aspiring mass murderers) yet more useful to elderly
householders and others who are too frightened to draw a
careful bead on an intruder or physically unable to do so.
Where does the balance of danger lie?
The problems that would be created by treating such
empirical issues as for the judiciary rather than the legisla‐
ture—and the possibility that different judges might reach
dramatically different conclusions about relative risks and
their constitutional significance—illustrate why courts
should not read Heller like a statute rather than an explana‐
tion of the Court’s disposition. The language from Heller that
we have quoted is precautionary: it warns against readings
that go beyond the scope of Heller’s holding that “the Second
Amendment creates individual rights, one of which is keep‐
ing operable handguns at home for self‐defense.” Skoien, 614
F.3d at 640.
No. 14‐3091 7
Heller does not purport to define the full scope of the
Second Amendment. The Court has not told us what other
entitlements the Second Amendment creates or what kinds
of gun regulations legislatures may enact. Instead the Court
has alerted other judges, in Heller and again in McDonald,
that the Second Amendment “does not imperil every law
regulating firearms.” McDonald, 561 U.S. at 786 (plurality
opinion); Heller, 554 U.S. at 626–27 & n.26. Cautionary lan‐
guage about what has been left open should not be read as if
it were part of the Constitution or answered all possible
questions. It is enough to say, as we did in Skoien, 614 F.3d at
641, that at least some categorical limits on the kinds of
weapons that can be possessed are proper, and that they
need not mirror restrictions that were on the books in 1791.
This does not imply that a law about firearms is proper if
it passes the rational‐basis test—that is, as long as it serves
some conceivable valid function. See, e.g., Vance v. Brad‐
ley, 440 U.S. 93 (1979). All legislation requires a rational basis;
if the Second Amendment imposed only a rational basis re‐
quirement, it wouldn’t do anything. So far, however, the Jus‐
tices have declined to specify how much substantive review
the Second Amendment requires. Two courts of appeals
have applied a version of “intermediate scrutiny” and sus‐
tained limits on assault weapons and large‐capacity maga‐
zines. See Heller v. District of Columbia, 670 F.3d 1244 (D.C.
Cir. 2011) (a law materially identical to Highland Park’s is
valid); Fyock v. Sunnyvale, 779 F.3d 991 (9th Cir. 2015) (a ban
on magazines holding more than ten rounds is valid). But
instead of trying to decide what “level” of scrutiny applies,
and how it works, inquiries that do not resolve any concrete
dispute, we think it better to ask whether a regulation bans
weapons that were common at the time of ratification or
8 No. 14‐3091
those that have “some reasonable relationship to the preser‐
vation or efficiency of a well regulated militia,” see Heller,
554 U.S. at 622–25; Miller, 307 U.S. at 178–79, and whether
law‐abiding citizens retain adequate means of self‐defense.
The features prohibited by Highland Park’s ordinance
were not common in 1791. Most guns available then could
not fire more than one shot without being reloaded; revolv‐
ers with rotating cylinders weren’t widely available until the
early 19th century. Semi‐automatic guns and large‐capacity
magazines are more recent developments. Barrel shrouds,
which make guns easier to operate even if they overheat, al‐
so are new; slow‐loading guns available in 1791 did not
overheat. And muzzle brakes, which prevent a gun’s barrel
from rising in recoil, are an early 20th century innovation.
Some of the weapons prohibited by the ordinance are
commonly used for military and police functions; they there‐
fore bear a relation to the preservation and effectiveness of
state militias. But states, which are in charge of militias,
should be allowed to decide when civilians can possess mili‐
tary‐grade firearms, so as to have them available when the
militia is called to duty. (Recall that this is how Heller under‐
stood Miller.) And since plaintiffs do not distinguish be‐
tween states and other units of local government—according
to them, an identical ban enacted by the State of Illinois
would also run afoul of the Second Amendment—we need
not decide whether only states, which traditionally regulate
militias, have the power to determine what kinds of weap‐
ons citizens should have available. (Such an argument might
anyway have been foreclosed by Illinois’ recognition that lo‐
cal assault‐weapon bans enacted before July 19, 2013, are val‐
id; see 430 ILCS 65/13.1(c).)
No. 14‐3091 9
Since the banned weapons can be used for self‐defense,
we must consider whether the ordinance leaves residents of
Highland Park ample means to exercise the “inherent right
of self‐defense” that the Second Amendment protects. Heller,
554 U.S. at 628. Heller held that the availability of long guns
does not save a ban on handgun ownership. The Justices
took note of some of the reasons, including ease of accessibil‐
ity and use, that citizens might prefer handguns to long guns
for self‐defense. But Heller did not foreclose the possibility
that allowing the use of most long guns plus pistols and re‐
volvers, as Highland Park’s ordinance does, gives house‐
holders adequate means of defense.
Plaintiffs argue that the ordinance substantially restricts
their options for armed self‐defense. But that contention is
undermined by their argument, in the same breath, that the
ordinance serves no purpose, because (they say) criminals
will just substitute permitted firearms functionally identical
to the banned guns. If criminals can find substitutes for
banned assault weapons, then so can law‐abiding home‐
owners. Unlike the District of Columbia’s ban on handguns,
Highland Park’s ordinance leaves residents with many self‐
defense options.
True enough, assault weapons can be beneficial for self‐
defense because they are lighter than many rifles and less
dangerous per shot than large‐caliber pistols or revolvers.
Householders too frightened or infirm to aim carefully may
be able to wield them more effectively than the pistols James
Bond preferred. But assault weapons with large‐capacity
magazines can fire more shots, faster, and thus can be more
dangerous in aggregate. Why else are they the weapons of
choice in mass shootings? A ban on assault weapons and
10 No. 14‐3091
large‐capacity magazines might not prevent shootings in
Highland Park (where they are already rare), but it may re‐
duce the carnage if a mass shooting occurs.
That laws similar to Highland Park’s reduce the share of
gun crimes involving assault weapons is established by data.
See Christopher S. Koper, Daniel J. Woods & Jeffery A. Roth,
An Updated Assessment of the Federal Assault Weapons Ban: Im‐
pacts on Gun Markets and Gun Violence, 1994‐2003, Report to
the National Institute of Justice, United States Department of
Justice 39–60 (June 2004). There is also some evidence link‐
ing the availability of assault weapons to gun‐related homi‐
cides. See Arindrajit Dube, Oeindrila Dube & Omar García‐
Ponce, Cross‐Border Spillover: U.S. Gun Laws and Violence in
Mexico, 107 Am. Pol. Sci. Rev. 397 (2013) (finding that Mexi‐
can municipalities bordering American states without as‐
sault weapons bans experienced more gun‐related homi‐
cides than those bordering California, which had a ban).
Plaintiffs nonetheless contend that the ordinance will
have no effect on gun violence because the sort of firearms
banned in Highland Park are available elsewhere in Illinois
and in adjacent states. But data show that most criminals
commit crimes close to home. See Elizabeth Groff & Tom
McEwen, Exploring the Spatial Configuration of Places Related to
Homicide Events, Report to the National Institute of Justice,
United States Department of Justice 5–10, 48–56 (March
2006) (homicide); Christophe Vandeviver, Stijn Van Daele &
Tom Vander Beken, What Makes Long Crime Trips Worth Un‐
dertaking? Balancing Costs and Benefits in Burglars’ Journey to
Crime, 55 Brit. J. Criminology 399, 401, 406–07 (2015) (burgla‐
ry). Local crimes are most likely to be committed by local
residents, who are less likely to have access to firearms
No. 14‐3091 11
banned by a local ordinance. A ban on assault weapons
won’t eliminate gun violence in Highland Park, but it may
reduce the overall dangerousness of crime that does occur.
Plaintiffs’ argument proves far too much: it would imply
that no jurisdiction other than the United States as a whole
can regulate firearms. But that’s not what Heller concluded,
and not what we have held for local bans on other substanc‐
es. See National Paint & Coatings Ass’n v. Chicago, 45 F.3d 1124
(7th Cir. 1995) (spray paint).
If it has no other effect, Highland Park’s ordinance may
increase the public’s sense of safety. Mass shootings are rare,
but they are highly salient, and people tend to overestimate
the likelihood of salient events. See George F. Loewenstein,
Christopher K. Hsee, Elke U. Weber & Ned Welch, Risk as
Feelings, 127 Psychological Bulletin 267, 275–76 (2001); Eric J.
Johnson, John Hershey, Jacqueline Meszaros & Howard
Kunreuther, Framing, Probability Distortions, and Insurance
Decisions, 7 J. Risk & Uncertainty 35 (1993). If a ban on semi‐
automatic guns and large‐capacity magazines reduces the
perceived risk from a mass shooting, and makes the public
feel safer as a result, that’s a substantial benefit. Cf. Frank v.
Walker, 768 F.3d 744, 751 (7th Cir. 2014).
McDonald holds that the Second Amendment creates in‐
dividual rights that can be asserted against state and local
governments. But neither it nor Heller attempts to define the
entire scope of the Second Amendment—to take all ques‐
tions about which weapons are appropriate for self‐defense
out of the people’s hands. Heller and McDonald set limits on
the regulation of firearms; but within those limits, they leave
matters open. The best way to evaluate the relation among
assault weapons, crime, and self‐defense is through the po‐
12 No. 14‐3091
litical process and scholarly debate, not by parsing ambigu‐
ous passages in the Supreme Court’s opinions. The central
role of representative democracy is no less part of the Con‐
stitution than is the Second Amendment: when there is no
definitive constitutional rule, matters are left to the legisla‐
tive process. See McCulloch v. Maryland, 17 U.S. 316, 407
(1819).
Another constitutional principle is relevant: the Constitu‐
tion establishes a federal republic where local differences are
cherished as elements of liberty, rather than eliminated in a
search for national uniformity. McDonald circumscribes the
scope of permissible experimentation by state and local gov‐
ernments, but it does not foreclose all possibility of experi‐
mentation. Within the limits established by the Justices in
Heller and McDonald, federalism and diversity still have a
claim. Whether those limits should be extended is in the end
a question for the Justices. Given our understanding of exist‐
ing limits, the judgment is
AFFIRMED.
No. 14-3091 13
MANION, Circuit Judge, dissenting.
By prohibiting a class of weapons commonly used
throughout the country, Highland Park’s ordinance infringes
upon the rights of its citizens to keep weapons in their homes
for the purpose of defending themselves, their families, and
their property. Both the ordinance and this court’s opinion
upholding it are directly at odds with the central holdings of
Heller and McDonald: that the Second Amendment protects a
personal right to keep arms for lawful purposes, most notably
for 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 respectfully
dissent.
Unlike public life where the cities and states have broad
authority to regulate, the ultimate decision for what constitutes
the most effective means of defending one’s home, family, and
property resides in individual citizens and not in the govern-
ment. The Heller and McDonald opinions could not be clearer
on this matter. Heller, 554 U.S. at 635; McDonald, 561 U.S. at 780.
The extent of danger—real or imagined—that a citizen faces at
home is a matter only that person can assess in full.
To be sure, assault rifles and large capacity magazines are
dangerous. But their ability to project large amounts of force
accurately is exactly why they are an attractive means of self-
defense. While most persons do not require extraordinary
means to defend their homes, the fact remains that some do.
Ultimately, it is up to the lawful gun owner and not the
government to decide these matters. To limit self-defense to
only those methods acceptable to the government is to effect an
enormous transfer of authority from the citizens of this country
to the government—a result directly contrary to our constitu-
14 No. 14-3091
tion and to our political tradition. The rights contained in the
Second Amendment are “fundamental” and “necessary to our
system of ordered liberty.” McDonald, 561 U.S. at 778. The
government recognizes these rights; it does not confer them.
Fundamentally, I disagree with the court’s reading of
United States v. Miller, 307 U.S. 174 (1939), as it pertains to the
nature of the rights recognized by the Second Amendment.
Long ago, in Miller, the Supreme Court expressly tied Second
Amendment rights to one’s association with a state militia. In
Heller, the District of Columbia relied on this holding from
Miller as justification for an ordinance restricting the rights of
its citizens to keep and use handguns. 554 U.S. at 577, 587. The
Supreme Court disagreed. Id. at 622. Indeed, the central
holding of Heller is that citizens have an individual right to
keep and bear firearms that does not depend upon any
association with a militia. In so holding, Heller effectively laid
to rest the notion of collective Second Amendment rights, and
then 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 as
if Miller were still the controlling authority and Heller were a
mere gloss on it. The court’s reading culminates in a novel test:
whether the weapons in question were “common at the time of
ratification” or have “some reasonable relationship to the
preservation or efficiency of a well regulated militia,” and
“whether law-abiding citizens retain adequate means of self-
defense.” Ante at 7–8.
The problem is Heller expressly disclaimed two of the three
aspects of this test; and it did so not as a matter of simple
housekeeping, but as an immediate consequence of its central
holding. It held as “bordering on the frivolous” arguments that
No. 14-3091 15
recognized a right to bear only those arms in existence at the
time of ratification. Heller, 554 U.S. at 582 (“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.”). Likewise, it expressly overruled any reading
of the Second Amendment that conditioned the rights to keep
and bear arms on one’s association with a militia. Id. at 612. (“It
is not possible to read this as discussing anything other than an
individual right unconnected to militia service.”). For this
reason, there is no way to square this court’s holding with the
clear precedents of Heller and McDonald.
Heller and McDonald
We turn to the controlling precedents. Although the Heller
decision is of recent vintage, the rights recognized by it—for
individual citizens to keep and bear arms lawfully—are not.
Heller certainly did not create them in 2008, nor did the Second
Amendment in 1791. These rights are “fundamental” and
“deeply rooted in this Nation’s history and tradition.” McDon-
ald, 561 U.S. at 768. They are natural rights that pre-existed the
Second Amendment. Heller, 554 U.S. at 592 (quoting United
States v. Cruikshank, 92 U.S. 542, 553 (1876) that the right to
carry 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 was
shared by the Framers of the Fourteenth Amendment, who
counted these among the “fundamental rights necessary to our
system of ordered liberty.” McDonald, 561 U.S. at 778. These
rights exist not merely in the abstract, but are exercised on a
daily basis; indeed, a detailed list of the various ways in which
Americans use weapons lawfully would be prohibitively long.
16 No. 14-3091
Which brings us to Friedman, our plaintiff. He is a resident
of Highland Park who owns an AR rifle and large capacity
magazines of the types prohibited by the ordinance. Friedman
contends—and the city does not contest—that he keeps the
weapons in his home for the defense of his family. Prior to the
passage of the ordinance, he used these weapons lawfully.
Now, under the terms of the ordinance, Friedman has ninety
days to remove the weapons beyond Highland Park’s city
limits or to surrender them to the Chief of Police. §136.005
(D)(1), (3). Should he fail to do so, he faces a misdemeanor
conviction punishable by up to six months in jail and a fine of
between $500 and $1,000. Id. at § (F).
The Framework
In Ezell, we stated that a court must first identify whether
the regulated activity falls within the scope of the Second
Amendment. 651 F.3d at 701. However, where, as here, the
activity is directly tied to specific classes of weapons, we are
faced with an additional threshold matter: whether the classes
of weapons regulated are commonly used by law-abiding
citizens. If the weapons in question (assault rifles and high-
capacity magazines) are not commonly used by law-abiding
citizens, then our inquiry ends as there is no Second Amend-
ment protection and the regulation is presumed to be lawful.1
1
This question is best viewed as a separate, threshold matter than as an
aspect of the regulated activity. An example bears this out: because hand
grenades have never been commonly used by law-abiding citizens for
lawful purposes, it matters not whether the regulation is an ordinance
prohibiting ownership of such weapons, a licensing scheme impeding
access to them, or a regulation setting conditions on their manufacture or
sale: the Second Amendment does not apply to such inquiry because the
type of weapon is not covered by it.
No. 14-3091 17
If the weapons are covered by the Second Amendment, we
then examine whether the asserted right (i.e., the activity
affected by the regulation) is likewise covered. To do this, we
examine how the asserted right was publicly understood when
the Fourteenth Amendment was ratified (or Second Amend-
ment in the case of federal regulation) to discern whether the
right (or some analogue) has been exercised historically. Id. at
702. This answer requires a textual and historical inquiry into
the original meaning of the Second Amendment. Id. (citing
Heller, 554 U.S. at 634–35). Significantly, the plaintiff need not
demonstrate the absence of regulation in order to prevail; the
burden rests squarely on the government to establish that the
activity has been subject to some measure of regulation. Id.
Finally, if we conclude that the weapons and asserted right
at issue are covered by the Second Amendment, then we must
assign a level of scrutiny appropriate to the right regulated and
determine whether the regulation survives such scrutiny. Ezell,
651 F.3d at 702–03. Conversely, if the activity falls outside of
the scope of the Second Amendment as understood at the
relevant historical moment (1868 with the passage of the
Fourteenth Amendment), the regulated activity is categorically
unprotected and our inquiry ends. Id. at 703.
In summary, this framework involves up to three separate
steps for a reviewing court. A shorthand of it runs as follows:
1. determine whether the weapon is commonly used by
law-abiding citizens;
2. review the original public meaning of the asserted right
(i.e. the regulated activity); and, if both the weapon and
asserted right are covered;
3. assign and apply a standard of scrutiny.
18 No. 14-3091
Having established the appropriate framework, it is time to
examine Highland Park’s ordinance in light of the Second
Amendment.
Common Use
The regulated weapons: In Miller, the Supreme Court
upheld a prohibition against short-barreled shotguns because
the Second Amendment did not protect those weapons that
were not typically possessed as ordinary military equipment
for use in a state militia. 307 U.S. at 178. The “common use”
test is the offspring of this decision and asks whether a
particular weapon is commonly used by law-abiding citizens
for lawful purposes.2 Heller jettisoned Miller’s requirement of
a nexus between the weapon and military equipment, but
otherwise adopted the test with a focus on whether the
weapon in question has obtained common use by law abiding
citizens. Heller, 554 U.S. 623, 627.
Here, the evidentiary record is unequivocal: a statistically
significant amount of gun owners such as Friedman use semi-
automatic weapons and high-capacity magazines for lawful
purposes.3 This evidence is sufficient to demonstrate that these
2
It is of no significance that other courts have worded this inquiry
differently, asking whether the regulated weapons are “dangerous and
unusual.” All weapons are presumably dangerous. To say that a weapon is
unusual is to say that it is not commonly used for lawful purposes.
3
Insofar as the evidentiary record addresses the matter, it supports the
proposition that AR-rifles are commonly used by law-abiding citizens. Out
of 57 million firearm owners in the United States, it is estimated that 5
million own AR-type rifles. (A. 66). Firearm industry analysts estimate that
5,128,000 AR-type rifles were produced in the United States for domestic
sale, while an additional 3,415,000 were imported. (A. 65; 73). Between 2008
No. 14-3091 19
weapons are commonly used and are not unusual. In other
words, they are covered by the Second Amendment. Whether
or how people might use these weapons for illegal purposes
provides a basis for a state to regulate them, but it has no
bearing on whether the Second Amendment covers them.
Unfortunately, the court effectively inverts this equation and
considers first the potential illegal uses (here: catastrophic
public shootings) and then doubles back to determine whether
attendant lawful use by ordinary citizens might be sufficient to
warrant some type of Second Amendment protection.
An example: At oral argument, there was much discussion
about various longstanding regulations prohibiting such
weapons as machine guns. The crux of this discussion was
whether machine guns would have satisfied the common use
test during the 1930s when they were the weapon of choice
among gangsters in Chicago. But this misses the point: it
matters not whether fifty or five thousand mob enforcers used
a particular weapon, the question is whether a critical mass of
law-abiding citizens did. In the case of machine guns, nobody
has argued, before or since, that ordinary citizens used these
weapons for lawful purposes, and so they have been rightly
deemed not to fall within the ambit of the Second Amendment.
Had there been even a small amount of citizens who used them
for lawful purposes, then the Second Amendment might have
covered them. The fact that gangsters used them to terrorize
people might have served as ample justification to regulate
and 2012, approximately 11.4% of firearms manufactured in the United
States were AR-type rifles. A survey of randomly selected United States
residents demonstrated that an estimated 11,976,702 million persons
participated in target shooting with an AR-type rifle in 2012. (A. 68; 102).
The evidentiary record contains no entries disputing these estimates.
20 No. 14-3091
them (or even prohibit them outright), but it has no bearing on
whether they are covered under the Second Amendment.4
The court also objected because the common-use test is a
circular one.5 Perhaps so, but the law is full of such tests, and
this one is no more circular than the “reasonable expectation of
privacy” or the “reasonable juror.” The fact that a statistically
significant number of Americans use AR-type rifles and large-
size magazines demonstrates ipso facto that they are used for
lawful purposes. Our inquiry should have ended here: the
Second Amendment covers these weapons.
4
Weapons can be commonly used by both criminals and law-abiding
citizens. For example, the court correctly notes that handguns have long
been the preferred weapon for criminals and are “responsible for the vast
majority 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 the
Second Amendment because it was (and still is) “the most preferred firearm
in the nation.” 561 U.S. 767. In evaluating common use, McDonald
considered as relevant only use by law-abiding citizens.
5
Circularity results from the obvious fact that common use is aided
when a weapon is legal and precluded when it is not. The argument goes
that authorities are free to regulate irrespective of the Second Amendment
until 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. But
this scenario overstates the evolution of technology among weapons.
Overwhelmingly, newly developed weapons are merely updated versions
of weapons already in the marketplace. It is rare to have a weapon come to
market in such form that it has no precursors subject to regulation. Weapon
manufacturers are unlikely to expend funds to develop and bring to market
variations on classes of weapons that are currently prohibited.
No. 14-3091 21
Original Meaning of Asserted Rights
We follow Heller’s example examining the original meaning
of the right asserted. 554 U.S. at 576. Heller examined the right
to keep arms as it was understood in 1791 when the Second
Amendment was ratified. Significantly, Heller expressly
rejected the view that the Second Amendment contained a
unitary right and instead noted that lawmakers of the founding
period routinely grouped multiple, related, rights under a
singular right. Heller, 554 U.S. at 591. Because the rights in the
Second Amendment are many and varied, a court must
identify the specific right implicated by a regulation.
To examine the scope of the right, we must first identify the
regulated activity. Here, the relevant section of the ordinance
provides that: “No person shall manufacture, sell, offer or
display for sale, give, lend, transfer ownership of, acquire or
possess any assault weapon or large capacity magazine.” §
136.005(B). Plaintiffs do not challenge the provisions associated
with the manufacture or sale of such weapons in Highland
Park and so we need not address the scope of those rights.
Instead, we isolate our attention on the language in the statute
that forbids a citizen from acquiring or possessing any assault
weapon 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 “have
weapons,” and “to bear arms” as to “carr[y]” weapons. 554
U.S. at 582; 589. Though similar, these activities are not
identical; for instance, an ordinance that prohibits the carriage
or use of weapons but not outright possession would not
implicate the right to keep arms, but only the right to bear
them in certain locations. Highland Park’s ordinance implicates
22 No. 14-3091
both rights. Leaving aside the other prohibitions, the ordinance
prohibits the “acqui[sition] or possess[ion of] any assault
weapon or large capacity magazine.” §136.005 (B). Notably
absent from this provision is any qualifying language: all forms
of possession are summarily prohibited. Other laws notwith-
standing, the ordinance makes no distinction between storing
large-capacity magazines in a locked safe at home and carrying
a loaded assault rifle while walking down Main Street. Both
constitute “possession” and are prohibited outright.
Of course, our inquiry centers on the understanding of the
right to keep arms in 1868 when the Fourteenth Amendment
became law. Fortunately, we need not engage in original
historical analysis because the Supreme Court in McDonald has
done so on this exact question—albeit in the context of an
ordinance restricting the right to keep handguns in the home.
McDonald concluded that the right to keep a weapon in one’s
home for the purposes of self-defense is the broadest right
under the Second Amendment. It noted:
Self-defense is a basic right, recognized by many legal
systems from ancient times to the present day, and in
Heller, we held that individual self-defense is ‘the central
component’ 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 this
right applies to handguns because they are ‘the most
preferred firearm in the nation to ‘keep’ and use for the
protection of one’s home and family … . Thus, we
concluded, citizens must be permitted to use [hand-
guns] for the core lawful purpose of self-defense.
McDonald, 561 U.S. at 767–68 (citing Heller, 554 U.S. at 630)
(emphasis in original).
No. 14-3091 23
Rather than merely regulate how weapons are to be stored
at home, Highland Park’s ordinance goes further than the one
that the Court found unconstitutional in Heller: it prohibits any
form of possession of these weapons. It is immaterial to this
inquiry that the regulations targeted different classes of
weapons (handguns versus assault rifles and large-capacity
magazines) because the issue at this step involves the scope of
the protected activity—the right to keep arms for self-
defense—not the class of weapons involved with such activity;
that inquiry is relevant at the final step in examining the
purpose for the regulation.
If the right to keep arms in the home for the purpose of self-
defense obtains the broadest protections under the Second
Amendment, it follows by implication that regulations affect-
ing the rights to carry (bear) arms outside of the home are
given greater deference. Indeed, the vast majority of the
longstanding regulations deemed “presumptively lawful” by
Heller and McDonald are regulations against the use and
carriage of weapons. See, e.g., Heller, 554 U.S. at 626–27; Heller
v. 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 of
weapons in sensitive locations such as courthouses or banned
dueling or carrying concealed weapons such as pocket pistols
or bowie knives. See Robert Leider, Our Non-Originalist Right
to Bear Arms, 89 Ind. L. J. 1587, 1601 (2014). In contrast, those
regulations prohibiting ownership of weapons outright
focused on the status of the regulated party as a felon or a
person 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.
24 No. 14-3091
Standards of Scrutiny
Insofar as Highland Park’s ordinance implicates Friedman’s
right to keep assault rifles and large-capacity magazines in his
home 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 fundamental
rights are given the most exacting scrutiny”) (citation omitted).
Of course, other courts have applied lower standards of review
even in cases where they recognized that the regulation
impinged 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 right
might be exercised, Highland Park’s ordinance serves as a total
prohibition of a class of weapons that Friedman used to defend
his home and family. The right to self-defense is largely
meaningless if it does not include the right to choose the most
effective means of defending oneself. For this reason, Heller
struck down a District of Columbia ordinance requiring that
firearms in the home be rendered and kept inoperable at all
times because the ordinance “makes it impossible for citizens
to use [the regulated weapons] for the core lawful purpose of
self-defense … .” Heller, 554 U.S. at 630. Because Highland
Park’s 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 its
law furthers a compelling government interest and must
employ the least restrictive means to achieve that end. United
States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813
(2000). Accordingly, Highland Park claims that the law
furthers the compelling interest of preventing public shootings
No. 14-3091 25
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 compelling
interest in this case. That the regulated weapons are capable of
inflicting substantial force is no doubt relevant in forming a
basis for the City to regulate their use within its public spaces.
The difficulties arise in the next prong; rather than being
the least restrictive means to address these particular public
safety issues, Highland Park’s ordinance serves as the bluntest
of instruments, banning a class of weapons outright, and
restricting the rights of its citizens to select the means by which
they defend their homes and families. Here, one need not parse
out the various alternatives that Highland Park could have
chosen to achieve these ends; any alternative would have been
less restrictive. This can only yield one conclusion: the provi-
sions in Highland Park’s ordinance prohibiting its citizens
from acquiring or possessing assault rifles or large-capacity
magazines are unconstitutional insofar as they prohibit citizens
from lawfully keeping such weapons in their homes.
Insofar as Highland Park’s ordinance implicates the right
to carry or use these weapons outside of one’s property, it is
subject to intermediate scrutiny. To satisfy this standard,
Highland Park must show that the restrictions are “substan-
tially related to an important government objective.” Clark, 486
U.S. at 461. As noted earlier, restricting the use and carriage of
assault rifles and large-capacity magazines in Highland Park
is related to an important government objective—protecting
the safety of its citizens. Unlike strict scrutiny analysis,
intermediate scrutiny does not require that the ordinance be
the least restrictive means, but that it serve an important
26 No. 14-3091
government interest in a way that is substantially related to
that interest. Univ. of N.Y. v. Fox, 492 U.S. 469, 477 (1989).
As other courts have noted, restrictions against assault
weapons and large capacity magazines can survive intermedi-
ate scrutiny. Heller II, 670 F.3d at 1244. Here, Highland Park
has a legitimate interest in ensuring the safety of its citizens in
schools and other public places. For this reason, there is no
problem concluding that the ordinance, insofar as it regulates
the possession and use of the weapons in public places, coheres
with the Second Amendment.
Several other matters require attention as well.
The rights in the Second Amendment: The court treats these
rights as unitary and undifferentiated. In so doing, it makes no
distinction between the right to keep arms to defend one’s
home and the right to use those arms in a constitutionally
permissible manner. But the Supreme Court has established
clear parameters: the right to keep arms in the home for self-
defense obtains the broadest protection, McDonald, 561 U.S. at
767 (noting that the “need for defense of self, family, and
property is most acute in the home … ), while other rights
under the Second Amendment are “not unlimited” but are
subject to appropriate regulation. Here, the court makes no
attempt to parse out the various activities prohibited by
Highland Park’s ordinance; instead it treats as identical
activities as diverse as keeping weapons in the home and
manufacturing them for sale. Heller requires courts to identify
the specific activity regulated; the court here failed to do this.
The effect of longstanding regulations: It is important to note
that Heller, for good reasons, did not seek to dismantle in
whole the nexus of existing firearms regulations. Instead, it
No. 14-3091 27
sought to recast the focus of courts away from policy consider-
ations and towards the original meaning of the Second
Amendment. In so doing, it left intact existing regulations and
stated that longstanding ones are accorded a presumption of
constitutionality. Heller, 554 U.S. at 626–27.
But a presumption is a very different thing from an
assertion: we presume that laws are constitutional until and
unless the regulation is challenged and a competent court
informs us otherwise. In other words, it is a very different
thing 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 a
navigational chart to determine the confines of permissible
firearm regulation. All of this culminates in a syllogism that
runs, roughly speaking, as follows: machine guns have been
illegal under law; assault weapons are similar to machine guns;
therefore, assault rifles may be prohibited under law. Nothing
in Heller or McDonald supports this as an appropriate frame-
work.
The evidentiary record: The court ignores the central piece of
evidence in this case: that millions of Americans own and use
AR-type rifles lawfully. (A.65–73). Instead, it adopts—as the
final word on the matter and with no discussion—Highland
Park’s position that the evidence is inconclusive on this
question; and it does this notwithstanding the fact that all of
the relevant evidence supports defendant’s contention that AR-
type rifles are commonly used throughout this nation. Addi-
tionally, it posits as self-evident a comparison between
semiautomatic weapons and machine guns despite the fact that
the existing science is, at best, contested on this. More signifi-
28 No. 14-3091
cantly, the only relevant evidence in record disputes this
contention.6
The post-Heller framework: The court wholly disregards the
(albeit still nascent) post-Heller framework established in this
and our sister courts in favor of its own, unique path. In so
doing, it offers a methodology in direct conflict to that offered
by this circuit in previous cases, see, e.g., Ezell, 651 F.3d 684, and
out of step with other circuits, United States v. Marzzarella, 614
F.3d 85 (3d Cir. 2010); Heller II, 670 F.3d 1244.
Judicial findings: Finally, the court justifies the ordinance as
valid because it “may increase the public’s 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 sentiment
about the matter.
As noted earlier, the post-Heller framework is very much a
work in progress and will continue to be refined in subsequent
litigation. Neither Heller nor McDonald purported to resolve
every matter involving the regulation of weapons; but they are
clear about one thing: the right to keep arms in the home for
self-defense is central to the Second Amendment and is not
conditioned on any association with a militia. Instead of
following this clear principle, the court engages in a gerryman-
dered reading of those cases to hold directly contrary to their
6
Plaintiffs submitted a video demonstration highlighting some of the
differences between semiautomatic, AR-type rifles and automatic rifles. (A.
63). Automatic weapons are selective-fire weapons where a single pull of
the 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).
No. 14-3091 29
precedents. In so doing, it upholds an ordinance that violates
the Second Amendment rights of its citizens to keep arms in
their homes for the purpose of defending themselves, their
families, and their property.
I respectfully dissent.