A COURT OF LAW THAT REJECTS U.S. SUPREME COURT PRECEDENT UNDERMINES THE RULE OF LAW AND UNDERCUTS THE U.S. CONSTITUTION
CITY OF HIGHLAND PARK, ILLINOIS DEFIES U.S. SUPREME COURT HOLDINGS IN HELLER AND MCDONALD AND SEVENTH CIRCUIT COURT OF APPEALS BOWS TO THE WILL OF GOVERNMENT IN FRIEDMAN CASE
State governments and local governments that enact or establish antigun laws, ordinances, rules, and regulations must comply with the U.S. Supreme Court’s rulings in District of Columbia vs. Heller, 554 U.S. 570 (2008) and McDonald vs. Chicago, 561 U.S. 742 (2010). State and local governments are not allowed to take the rulings of the U.S. Supreme Court lightly; and they are certainly not permitted to ignore the rulings of the High Court in the Heller and McDonald cases out-of-hand. This is not an option. It may therefore come as a shock to some people and an unpleasant surprise to many that State and local governments often do just that. Many State and local governments, not only ignore, but openly defy the U.S. Supreme Court’s holdings in Heller and McDonald. Worse, some federal and State courts, when called upon in lawsuits filed by plaintiffs — individuals and groups — to review plaintiffs’ challenges to governmental actions, directly and negatively impacting the Second Amendment right of the people to keep and bear arms, often give legitimacy to unconstitutional laws enacted by State legislatures and to unconstitutional ordinances, rules, and regulations adopted by local governments, rather than striking them down as an unconstitutional restraint on the exercise of a fundamental right. Antigun proponents zealots, unsurprisingly and unremarkably, don’t see — never see — a problem with this. Indeed, Michael Bloomberg’s antigun group, “Everytown for Gun Safety,” for one — the antigun political group that Bloomberg created upon leaving office as Mayor of New York City, after serving as its Mayor for twelve years — is ecstatic over an April, 2015 decision of the Seventh Circuit Court of Appeals in Friedman vs. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir. 2015). Just read the report by the left-wing news commentary site, “AlterNet,” on this. The article, which was posted on December 12, 2015, is titled, “Aggressive Pushback at Evil NRA Is Working; Lives Will Be Saved as a Result.”
While the antigun crowd sees reason to applaud any attack on Americans’ Second Amendment right of the people to keep and bear arms, even, and especially, those negative decisions, impacting the Second Amendment, handed down by courts of law — the institution of last resort, called upon to defend Americans’ rights and liberties — an institution that reasonably would be expected to preserve and defend, assiduously, the fundamental rights and liberties of Americans — no American, regardless of personal sentiment, or ethical view or political persuasion, should be pleased when the Second Amendment is in fact denigrated. No one should be pleased when the Second Amendment is attacked and denigrated because an attack on the sanctity of any one Amendment of our sacred Bill of Rights is, in essence, an attack on the sanctity of all of them. Political rhetoric should not be given equal weight with – much less lord over — our system of laws, and political rhetoric should not be used as a wedge to divide the public on matters directly impacting our fundamental rights and liberties, guaranteed to all Americans in our Bill of Rights.
Steven Rosenfeld, the author of the aforesaid “Alternet” article obviously disagrees. He argues that curtailment of Americans’ Second Amendment right to keep and bear arms, politically motivated, is politically warranted, even if not legally warranted, consistent with antigun rhetoric, spawned in the political world. And, Rosenfeld laments that our Second Amendment right is “bogged-down” in the legal world. So it is that Steven Rosenfeld waxes poetic and exclaims, exuberantly, how wonderful it is when the Second Amendment of our Bill of Rights is denigrated, and when unconscionable, abhorrent and unconstitutional laws, ordinances, rules, and regulations of States and Cities, that negatively impact our Second Amendment right to keep and bear arms, are allowed to flourish — with the assistance of and, indeed, blessing of those courts of law that write decisions, giving credence to and that sanctify those State and local laws, ordinances, rules, and regulations; and that advance no compelling governmental purpose; and that, in fact, are specifically designed to undermine and defeat Americans’ fundamental rights.
Courts that give credence to and that, in effect, sanctify such restrictive and oppressive and unconstitutional “edicts” of government are to be singled out for condemnation. In lieu of rendering decisions that defend and preserve Americans’ fundamental rights, such courts of law are to be seen as operating subordinate to, subservient to and merely as an extension of government, rather than as a component of a legitimate, independent institution in its own right, whose singular purpose is as overseer of government and protector of our laws and of our fundamental rights and liberties under the U.S. Constitution. Case in point: the aforesaid Friedman vs. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir. 2015), decided in April of 2015.
In the Friedman case the Plaintiff Appellants, including an individual, Ari Friedman, and a group, the Illinois State Rifle Association, brought suit against Defendant Appellee, City of Highland Park, in the State of Illinois. Highland Park had passed an ordinance, prohibiting the possession of “assault weapons” and “large capacity magazines,” namely ammunition magazines that can accept more than ten rounds. The ordinance defines an ‘assault weapon’ as any semiautomatic gun that can accept a ‘large capacity magazine’ and has at least one of five banned features, including, inter alia, a pistol grip without stock; a folding, telescoping stock; a grip for the non-trigger hand; or a barrel shroud. Moreover, the ordinance prohibits the ownership and possession of some firearms by name, such as AR-15s and AK47s.
Plaintiff Appellant Friedman lawfully owned a banned rifle and several large capacity magazines, before the ban took effect. The prohibited firearm and magazines are not “grandfathered in” by the ordinance. In that respect, the Highland Park ordinance goes well beyond the highly restrictive and oppressive New York Safe Act, insofar as and particularly as those residents of New York who lawfully owned and possessed firearms defined as ‘assault weapons’ prior to the effective date of the NY Safe Act, on January 15, 2013, are permitted to retain their weapons so long as they are timely registered in accordance with New York law. In Illinois, though, under the unconscionable City of Highland Park ordinance, Plaintiff Appellant Friedman was forced to surrender his banned weapon and banned ammunition magazines to the government. And had he failed to do so, he would be criminally prosecuted for possessing the very items that were perfectly legal for him to own prior to implementation of the ordinance. Friedman, as a law-abiding citizen dutifully, albeit certainly not happily, surrendered his “assault weapon” in order to avoid certain prosecution, and he wants to own these weapons back.
To have any chance of regaining possession of his weapons — his personal property — Friedman had no recourse but to file an action in the United States District Court for the Northern District of Illinois, challenging the oppressive ordinance and hoping that the federal court would strike down the restrictive gun ordinance as an unconstitutional infringement on the exercise of a fundamental right. Friedman, along with the Illinois State Rifle Association, that joined him in the lawsuit, argued that the City of Highland Park ordinance was inconsistent with the right of the people to keep and bear arms, guaranteed to all Americans, as an individual right under the Second Amendment of the U.S. Constitution and inconsistent, too, with Supreme Court holdings in Heller and McDonald. The District Court, nonetheless, found in favor of the Defendant Appellee, City of Highland Park, and Plaintiffs thereupon appealed the adverse decision to the Seventh Circuit Court of Appeals.
The Seventh Circuit Court of Appeals, citing Heller, at the outset of its Opinion, acknowledged that “Heller holds that a law banning the possession of handguns in the home (or making their use in the home infeasible) violates the individual right to keep and bear arms secured by the Second Amendment.” The Seventh Circuit also pointed to the holding of the high Court in the subsequent McDonald case, decided in 2010, where the U.S. Supreme Court held that, “the Second Amendment creates individual rights that can be asserted against state and local governments.” McDonald essentially took the holding of Heller — which applies to unconstitutional actions of the federal Government impacting the Second Amendment, under the due process clause of the Fifth Amendment — to unconstitutional actions of State and local governments, impacting the Second Amendment under the due process clause of the Fourteenth Amendment.
Given the clear, cogent, unambiguous, and comprehensive import of these two holdings in Heller and McDonald, the salient issue before the Seventh Circuit Court of Appeals was certainly easy to promulgate and should have been: whether the Highland Park ordinance, that proscribes certain weapons, operates as an unconstitutional constraint on a person’s right to keep and bear arms and, if not, then, whether the ordinance is the least restrictive means available to the City for advancing a compelling governmental purpose. Had the legal issue been set forth in this way, in accordance with the actual holdings of the U.S. Supreme Court in Heller and McDonald, utilizing the appropriate standard of review, namely the stringent strict scrutiny standard, to test the constitutionality of the Highland Park ordinance, the Seventh Circuit Court would have struck down the ordinance as an impermissible constraint on an Americans’ right to keep and bear arms under the Second Amendment, consistent with the holdings of the U.S. Supreme Court in the Heller and McDonald cases. For, under the strict scrutiny test there is no logical, coherent reason for the City of Highland Park to adopt an ordinance, negatively impinging upon and infringing a fundamental right that mandates a wholesale ban on an entire category of firearms, firearms that had been, prior to adoption of the ordinance, perfectly legal for law-abiding residents of the City to own and possess — namely and specifically firearms that the City arbitrarily defines as impermissible “assault weapons” and on ammunition magazines that happen to hold more than ten rounds. And, the government proffered no empirically and legally sound reason for the ban. Yet, the Seventh Circuit refused to apply the strict scrutiny test to the Highland Park ordinance even though, the City ordinance, on its face, impinged upon and infringed a fundamental right, and, indeed, the ordinance was specifically designed to do so.*
In its decision the Seventh Circuit also dismissed, inexplicably, the holdings of the U.S. Supreme Court in Heller and McDonald, giving nothing but lip-service to them, through the mere act of reciting the holdings in the Court’s opinion, but failing, utterly, in adhering to them. In fact, not only did the Seventh Circuit Court of Appeals fail to apply – as it should have done – a strict scrutiny standard of review to an ordinance impacting a fundamental right, the Court really failed to apply any standard of review in assessing the constitutionality of the Highland Park ordinance. Instead, notwithstanding the clear import and purport of the High Court’s holdings in Heller and McDonald and, notwithstanding that the Seventh Court of Appeals had before it, for its review, an ordinance directly, and emphatically, and categorically impacting a fundamental right, under the Second Amendment to the U.S. Constitution, the Seventh Circuit upheld the City of Highland Park ordinance. In permitting an unconstitutional local ordinance to stand, rather than striking it down, the Court of Appeals relied not on actual holdings of the high Court in Heller and McDonald, but on dicta in those cases, arguing that, because the high Court did not – according to the Seventh Circuit’s faulty reasoning – define the scope of the Second Amendment in its entirety, the Seventh Circuit was free to read into Heller and McDonald essentially whatever it wanted to.
Curiously, the Seventh Circuit Court of Appeals applied a “political” rationale to its decision, foregoing, altogether, application of the appropriate legal standard of review, and this becomes evident in the issue that the Court framed for itself and thereupon sought to resolve, namely: “whether the ordinance leaves residents of Highland Park ample means to exercise the ‘inherent right of self-defense’ that the Second Amendment protects.” The legal issue, that the Court framed for itself in this odd way, totally ignores the fact that many of Highland Park residents desire to hold onto an entire category of weapons and magazines that were and are perfectly legal to own and possess under the Second Amendment, consistent with the holdings in Heller and McDonald, where the U.S. Supreme Court made absolutely clear that government laws and ordinances that ban, wholesale, entire categories of weapons, are patently illegal.
By constructing the legal issue in the way that it did, the Seventh Circuit not only took away the freedom of the people to own and possess firearms that they previously had lawful access to but deliberately and defiantly refused to consider the constitutionality of the City ordinance at all in light of the Second Amendment and in light of the holdings of the U.S. Supreme Court in Heller and McDonald. In the issue that the Seventh Circuit Court of Appeals devised for itself, the Court insinuated politics into the issue, and in the resolution of the issue that the Seventh Circuit constructed for itself, the Court begged in the question the very answer it sought.
The Seventh Circuit surmised that, because the City of Highland Park did not prohibit all weapons, the City could prohibit some of them – including an entire category of weapons that had been perfectly lawful to own and possess prior to adoption of the City ordinance – and that the City could, in fact, prohibit, perfunctorily, without cause, those weapons and weapons’ paraphernalia, such as – what the City deemed to be – high capacity ammunition magazines, as it wished. In the issue that the Court devised for itself to resolve, the Seventh Circuit didn’t even need to listen to and consider the absurd arguments that the City put forth ostensibly in support of its wholesale gun ban. The Court included the rationale of the City government in its Opinion, to give seeming weight to its decision. But it was all empty “effect,” for the Court had ipso facto decided that, so long as the City of Highland Park left its residents with the means to own and possess at least one kind of firearm — whatever firearm the City deigned to allow its law-abiding citizens to possess — say an antique Blunderbuss — virtually all other firearms could lawfully be, and eventually would be, banned. In fact the Court’s reasoning leaves the door open for just that result: eventual adoption of yet further gun bans.
The Seventh Circuit Court of Appeal’s decision is grounded not only on faulty legal reasoning, but on faulty logical reasoning — reasoning truly at odds with the principles of sound logic and reasoning that is, at once, at odds with the holding in Heller. The Heller holding entails, by logical implication, that bans on entire categories of weapons are impermissible absent a clear and compelling reason for government to do so and this means that a government is not permitted to ban entire categories of weapons unless the court of review satisfies itself that a particular governmental law, or ordinance, or rule, or regulation is the least restrictive means available for advancing a compelling governmental interest.
Moreover, The Heller holding that constrains the federal government from enacting laws that constitutionally impinge upon and infringe the Second Amendment right of the people to keep and bear arms applies to the States and local governments through the due process clause of the Fourteenth Amendment, in accordance with the holding in McDonald. Thus, neither the federal Government, nor State and local governments, are permitted to infringe the Second Amendment’s right of the people to keep and bear arms absent extremely stringent scrutiny of the laws, ordinances, rules, and regulations by a reviewing court of competent jurisdiction. The Seventh Circuit failed, utterly, in performing its legal duties. Let’s take a closer look at the Seventh Circuit’s reasoning in Friedman to see more precisely where faults in the Court’s legal and logical reasoning rest.
The Seventh Circuit’s reasoning in Friedman is faulty, first, because the holdings of Heller and McDonald make abundantly clear that choice of weapons – those that have been available to Americans in the past – should continue to be available to Americans in the present, and into the future, absent a compelling reason set forth by government, to the satisfaction of the reviewing court, that establishes a lawful need to preclude ownership and possession of those weapons. In that regard, it is not for government to decide which firearms to permit Americans to continue to own and possess and which ones must be surrendered, based on mere personal predilections of government. That the City of Highland Park would do so – that it would dare to do so – amounts to an unconstitutional taking of property and serves at once to denigrate the import and purport of the holdings in Heller and McDonald because the ordinance amounts to a ban on an entire category of firearms and ammunition magazines absent any showing by the City of Highland Park that the City has in fact a compelling reason to do adopt such bans and absent any showing on the part of the City that the language of the ordinance as adopted is the least restrictive means available to the City to advance a compelling local governmental interest — which is to say that the compelling governmental interest is so critical that the government is justified in infringing a fundamental right – the right of the people to keep and bear arms. This is the strict scrutiny test.*
The Seventh Circuit did not consider strict scrutiny criteria at all when rendering its decision, and it should have done so. It simply allowed the City of Highland Park to assert an ad hoc assortment and array of non-empirical declarations of the usual sort developed by and utilized by antigun proponents to further a personal social and political agenda: de facto repeal of the Second Amendment to the U.S. Constitution, to force our unique Constitution toe the line with those of other Western nations — nations whose history and culture are markedly different from our own.
The Supreme Court, in Heller, made abundantly clear that the District of Columbia could not ban an entire category of firearms. In Heller, the District of Columbia attempted, unlawfully, to ban all handguns from the hands of the District of Columbia populace. The Supreme Court struck down the ordinance as unconscionably broad and an unconstitutional infringement of the Second amendment right of the people to keep and bear arms. Similarly, and by logical implication, then, the City of Highland Park could not constitutionally mandate a wholesale ban on so-called “assault weapons” and on magazines that happen to hold more than ten rounds of ammunition. Certainly the Seventh Circuit Court of Appeals could not allow the Highland Park ordinance to stand without first applying strict scrutiny to the City’s infringement of a fundamental right. The Seventh Circuit devised a makeshift standard of review, relying on political considerations to arrive at the “political” decision it wanted. The Court failed to apply the appropriate standard of review – or any recognized legal standard of review, for that matter. This amounts to prejudicial error, subjecting its decision to remand for further consideration, requiring application of the appropriate standard of review. The Seventh Circuit devised a makeshift standard to arrive at the “political” decision it wanted.
Second, in affirming the decision of the lower, District Court, the Seventh Circuit made the dubious assertion that, “the best way to evaluate the relation between assault weapons, crime, and self-defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court’s opinions.” But, there is nothing in the holdings of the U.S. Supreme Court in the Heller and McDonald cases that are ambiguous, and there is nothing in those decisions that suggest that a court of review can or should consider political matters when rendering a legal decision, impacting a fundamental right. Certainly, the Seventh Circuit did not point to any ambiguities in the Justices’ text, and there is nothing in the Supreme Court holdings that so much as intimate that political considerations are merited when testing the constitutionality of a governmental law, ordinance, rule or regulation. The Seventh Circuit simply made a bald and bold pronouncement.
The best way for a court of review – in fact the only lawful way for a court of review – to review a governmental law, or ordinance, or rule, or regulation that impinges on and infringes a fundamental right is for that court of review to demand that the government that enacts or adopts such a law, or ordinance, or rule, or regulation, sets forth, in the first instance and to the complete satisfaction of the reviewing court, the government’s legal argument, supporting the government’s contention that a given law, ordinance, rule, or regulation is, in that government’s contention is constitutional. The government necessarily has a heavy legal burden to carry for a court of law must assume that any such law, ordinance, rule, or regulation that negatively impacts a fundamental right is unconstitutional. A court of law, reviewing such governmental law, ordinance, rule, or regulation, negatively impacting an American’s fundamental right, has no discretion in the matter. The reviewing court must apply the strict scrutiny standard to test whether the governmental action can stand or be struck down. Moreover, and importantly, judicial deference to the political process is not a legally tenable basis or mechanism through which to test whether a law, or ordinance, or rule, or regulation that is clearly directed to and impacts a fundamental right is permitted to stand. The matter before the court is a purely legal one, and it is one that goes directly to the constitutionality of the law or ordinance. Political concerns are of no moment, or consequence in the reviewing court’s determination.
The issue of the constitutionality of a law, or ordinance, or rule, or regulation that impinges upon and infringes a fundamental right is solely and precisely and absolutely a legal issue, not a political one. Deference to political concerns has no place, where, as here, in the Friedman case, an ordinance directly impacts a fundamental right, and the Seventh Circuit Court of Appeals was wrong in opining that there is one.
Furthermore, and it bears repeating, where fundamental rights are at stake, government is under a heavy burden to justify any restriction on an American’s exercise of a fundamental right. That means, once again, that a governmental law, or ordinance, or rule, or regulation is presumed, from the get-go, to be unconstitutional, when a court of review begins its analysis of the impact of a law or ordinance on a fundamental right, such as the right of the people to keep and bear arms, and the burden of proof is on the government to demonstrate that a given law or ordinance is in fact constitutional. If a court of review finds that the government has failed to meet its burden, which is to say, that the court of review finds that the law or ordinance is, prima facie, unconstitutional, then that court of review must strike down the offending statute or ordinance. It has no choice in the matter, regardless of what it may otherwise wish to do. But suppose the court of review finds that the government has met its burden of proof and that the court finds the offending statute or ordinance to be facially constitutional. That doesn’t end the matter under the standard of strict scrutiny. That doesn’t mean that the governmental law, ordinance, rule, or regulation is permitted to stand. For, even if the government, in the first instance, is able to carry the heavy burden of proof and demonstrates to the satisfaction of the court that the law or ordinance is not facially unconstitutional, the matter doesn’t end there. Strict scrutiny embraces a two-part test. The court of review must then decide whether a given law or ordinance that is ostensibly constitutional is, for all that, still, in the government’s adoption of that statute or ordinance, or rule, or regulation, the least restrictive means available to the government by which to advance a compelling governmental purpose. If so and only if the court of review finds to its satisfaction that an oppressive law or ordinance that impacts a fundamental right is the least restrictive means available to that government to enable it to advance a compelling governmental purpose, can the court of review then and only then allow the oppressive law or ordinance to stand. Otherwise the court must strike down the offending law, or ordinance, or rule, or regulation.
In that judicial review of a State law or local governmental ordinance, rule, or regulation impacting a fundamental right, no deference is to be given to the political process. When a court of competent jurisdiction is called upon to review the constitutionality of laws, ordinances, rules, or regulations that impact fundamental rights, consideration of political issues, social issues and the political process are wholly inappropriate. Governmental laws and ordinances and rules and regulations impacting fundamental rights are most serious. An analysis of them involves the application of law, not politics, and courts of review are called upon to make a legal assessment of them. Matters impacting fundamental rights are never to be left to the wishes or to the wants or to the will of government. And, the Seventh Circuit Court of Appeals is absolutely wrong to assert that they can be and, for that matter, ought to be, left to government. And, by failing to apply the legal standard of strict scrutiny to an ordinance that directly impinges upon and infringes a fundamental right, the Seventh Circuit reduced itself to a servile vessel of government, giving deference to government action, where it should never have done so.
Third, in its deferential, even obsequious regard for government, the Seventh Circuit Court of Appeals added that, “the central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process.” This is patently false. The matter before the Seventh Circuit has nothing to do here with public policy any more than it has to do with the political process. The matter before the Court in the Friedman case has everything to do with the City government’s creation of and adoption of an ordinance directly and negatively impacting a fundamental right. And, a definitive constitutional rule, established by the U.S. Supreme Court in Heller, does exist, contrary to the Seventh Circuit’s assertion that there is none. The Seventh Circuit simply decided to ignore the Supreme Court’s clear and categorical and cogent holding. The Seventh Circuit’s argument in the Friedman case is not a direct and perceptive and critical review of a governmental ordinance, directly impinging upon and infringing the fundamental right of the people to keep and bear arms, but an unconscionable digression from its duty to review, critically, the constitutionality of the Highland Park ordinance. The Seventh Circuit altogether ignores its duty, a that duty rests squarely on testing the constitutionality of the Highland Park ordinance in light of the holdings in Heller and McDonald.
Fourth, the Seventh Circuit said, “another constitutional principle is relevant: The Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in search for national uniformity.” Even so, where, as here, the exercise of a fundamental right is at stake, the assertion of such a principle in this instance amounts to nothing more than rhetorical flourish, not sound legal reasoning. The Court’s assertion is not sound and has absolutely no relevance here because, once again, where a fundamental right is at stake, the application of that right – the right of the people to keep and bear arms – applies “across the board,” that is to say, nationally – and the holdings of the U.S. Supreme Court in the Heller and McDonald cases make this point poignant, clear, categorical, and unequivocal. “Local differences” are absolutely beside the point where fundamental rights, as set forth in our Bill of Rights, are at stake.
The Seventh Circuit simply and erroneously sets up a peripheral straw man issue and ignores the salient one which goes to the very heart of the import of the Second Amendment: whether the City of Highland Park Ordinance is unconstitutional on its face and, were it not so, then, whether that ordinance is, nonetheless, the least restrictive means available to the City of Highland Park for advancing a compelling governmental interest. By failing to consider the impact of the City of Highland Park ordinance on the fundamental right of the people to keep and bear arms, the Seventh Circuit improperly reduced a serious constitutional issue before it to one of mere public policy, political process, and local political and social concerns. Such analysis by a court of review might be adequate to address some minimal social concern or political matter, but not one that goes to the heart of our rights and liberties under the U.S. Constitution, namely and specifically, the right of the people to keep and bear arms, under the Second Amendment of the U.S. Constitution.
In his lengthy dissent, Judge Manion asserted, in his opening remarks, that “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.”
The dissenting Judge also noted that Plaintiff Appellant Friedman did, in fact, lawfully keep in his home, for self-defense, the weapons and ammunition magazines that the ordinance now bans, and that Friedman was compelled to surrender them to the authorities or face a misdemeanor conviction that is punishable by up to six months in jail and a fine of between $500.00 and $1,000.00. The City of Highland Park ordinance thus forces a law-abiding citizen either to forsake his Second Amendment right to keep and bear arms or to become a misdemeanant, end up in jail, pay a fine, and probably never again be able to own or possess any firearm.
Once the Seventh Circuit Court of Appeals affirmed the decision of the U.S. District Court for the Northern District of Illinois, Eastern Division, finding for the Defendant Appellee, City of Highland Park, against Plaintiff Appellants, Friedman and the Illinois State Rifle Association, the Appellants petitioned for a writ of certiorari to the U.S. Supreme Court. Justices Roberts, Scalia, Thomas, Kennedy, Ginsburg, Breyer, Alito, Sotomayor, Kagan all were in attendance to consider the writ of certiorari. A majority of Justices denied the writ. Justices Thomas and Scalia were so incensed at the refusal to grant the petition for writ that Justice Thomas, joined by Justice Scalia, admonished their brethren in a dissent.
In his opening remarks, Justice Thomas wrote, “‘[O]ur central holding in’ District of Columbia v. Heller, 554 U. S. 570 (2008), was ‘that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.’ And in McDonald, we recognized that the Second Amendment applies fully against the States as well as the Federal Government. Id., at 750; id., at 805 (THOMAS, J., concurring in part and concurring in judgment). Despite these holdings, several Courts of Appeals including the Court of Appeals for the Seventh Circuit in the decision below—have upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes. See 784 F. 3d 406, 410–412 (2015). Because noncompliance with our Second Amendment precedents warrants this Court’s attention as much as any of our precedents, I would grant certiorari in this case.”
It is abundantly clear that the Seventh Circuit Court of Appeals has failed in its duty to carefully review a governmental ordinance that, on its face, amounts to a deliberate, audacious, callous, caustic, and defiant attack, not only on the Second Amendment to the U.S. Constitution, but on clear and unambiguous holdings of the U.S. Supreme Court in Heller and McDonald that directly apply to the Friedman case and inform the Court how to review an ordinance that impacts the fundamental right of the people to keep and bear arms. By failing to consider the import and purport of the U.S. Supreme Court’s holdings in Heller and McDonald, the Seventh Circuit Court of Appeals in its holding in Friedman improperly and defiantly ignored the holdings of the U.S. Supreme Court in Heller and McDonald.
The Seventh Circuit has capitulated to local government; ignored the directives of the U.S. Supreme Court; failed to apply the appropriate legal standard when testing the constitutionality of a law or ordinance, infringing a fundamental right; reduced a serious constitutional issue to a mere administrative one; saw fit to prostate itself before a mere local government, raising that government to the level of potentate; made itself, wittingly or not, into a subservient ally of antigun groups; and allowed its status as an independent trier of law and fact to play a subordinate role to political forces. In ceding its own, critical judicial role, the Seventh Circuit Court of Appeals has demonstrated a callous disregard of its duties and joined with government in undermining the Second Amendment to the U.S. Constitution. It is most unfortunate that the majority of the U.S. Supreme Court Justices paid no heed to the remonstrations of Justices Thomas and Scalia. In denying the Friedman Appellants’ petition for writ of certiorari, the majority of Justices allowed a clearly unsound and deeply offensive ruling of the Seventh Circuit to stand, unchallenged.
The adverse and legally and logically unsound decision of the Seventh Circuit Court of Appeals in Friedman, coupled with the failure of the U.S. Supreme Court to grant Appellants’ petition for writ sets a bad precedent. Had the Justices, instead, granted the petition and determined to review the decision of the Seventh Circuit, then, thereafter, federal, State, and local governments and, too, federal and State courts would be placed on notice that the holdings of Heller and McDonald are not to be taken lightly. What has transpired in the Friedman case will only embolden antigun groups and their allies in government and in courts friendly to their political objectives to take further steps and ever more daring and outrageous steps to undercut the fundamental right of the people to keep and bear arms. Erosion of our remaining rights and liberties, as set forth in our Bill of Rights will, as well, follow suit.
Indeed, when one takes the time to pause and consider what has, of late, been occurring in our Nation, one becomes immediately aware that the destruction of our Bill of Rights — most prominently, our First, Fourth, and Fifth Amendments, along with our sacred Second Amendment — is already well underway.
*UPDATE AND CLARIFICATION:
Reviewing this post, we must clarify the points made in our analysis of strict scrutiny as a standard of review in Second Amendment cases. In our jurisprudence, where fundamental rights are at stake, such as exercise of one’s Second Amendment right of the people to keep and bear arms, governments must apply the least restrictive means to accomplish their goals. And, Courts will use strict scrutiny to assess the constitutionality of laws, impacting fundamental rights, when a challenge is made as to the constitutionality of them.
The U.S. Supreme Court in Heller did not, though, articulate a specific standard of review a court must use when assessing the constitutionality of a law when a constitutional challenge to a law impacting the Second Amendment is raised, apart from stating that the most liberal standard of judicial review, rational basis as a means test, is altogether inappropriate for means testing. It is not clear that the Highland Park Court used any standard of review but merely and essentially rubber stamped government edit. If the Seventh Circuit Court of Appeals applied any standard of review, in Friedman vs. Highland Park, then, tacitly, the Court applied “rational basis,” the lowest most deferential standard of review. But, The U.S. Supreme Court in Heller pointedly remarked that rational basis was never the correct standard of review in Second Amendment cases and can never be appropriately applied in any Second Amendment case.
That the high Court did not apply a standard of review in Heller though was probably due to the fact that the Court found the District of Columbia’s total ban on handguns to be facially, per se, invalid. The law was designed to destroy the core value of the Second Amendment and therefore had to be struck down as a blatant example of a law that was unconstitutional. So, the high Court found it unnecessary to apply strict scrutiny.
For those laws, infringing the Second Amendment right that do not, on their face, appear to be invalid, then, arguably, consistent with Heller, heightened scrutiny of such law must be invoked and applied by a court of review.
Strict scrutiny, as a means test, is, traditionally, the most durable and most stringent standard of heightened security a court or judicial review can apply, when deciding the constitutionality of a law. Yet, some Courts–those obviously antithetical to the Second Amendment– have, through the failure of the Heller Court to articulate a definitive standard of review, tended to apply an intermediate scrutiny test or, as in the Friedman vs. Highland Park case, a rational basis, if a standard of review was applied by a Court at all, if only tacitly. Again, rational basis is not an appropriate standard for means testing a law infringing upon the Second Amendment in any circumstance.
Curiously, rational basis is used by New York Courts and is used by those Courts with regularity to justify the NY Safe Act and to justify any other restrictive gun law that the New York State Legislature and other governmental bodies in New York implement. Under strict scrutiny or even under intermediate scrutiny, it is unlikely that New York’s draconian gun laws would stand. New York Courts know this, and that may explain why they rigidly adhere to application of an incorrect, liberal standard of review at all.[separator type=”medium” style=”normal” align=”left”margin-bottom=”25″ margin_top=”5″] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.