IS THE U.S. SUPREME COURT LOSING CONTROL OVER THE LOWER COURTS?
LOWER COURTS HAVE GROWN INCREASINGLY DISDAINFUL OF FOLLOWING U.S. SUPREME COURT RULINGS AND REASONING
A LOOK AT THE RECENT ILLINOIS CASE, HARREL VS. RAOUL
It is high time the U.S. Supreme Court asserted its Article III authority against forces that dare to crush the common man’s liberty and freedom.
The Court must be more forceful in using the tools at its disposal to save the Republic.
Two weeks after the U.S. Supreme Court handed down its decision in Bruen, New York’s Governor Kathy Hochul defied the Court. She signed into law New York’s “Concealed Carry Improvement Act” (“CCIA”).
The Second Circuit sided with her rather than with the U.S. Supreme Court. The Arbalest Quarrel discussed this. See, e.g., the article reposted on Ammoland Shooting Sports News on December 14, 2023.
Challenges came swiftly. Hopefully, at least one of those cases, likely Antonyuk vs. Chiumento, is headed for the High Court.
Other Anti-Second Amendment State Governments followed New York’s lead.
Hawaii is one of them. Hawai‘i versus Wilson defiantly flouted the High Court’s holding that the right of the people to keep and bear arms applies in the public domain, no less than in the home.
The Arbalest Quarrel touched upon this as well. See the article reposted on Ammoland on January 31, 2024.
The Plaintiff Appellant, Wilson, will hopefully appeal the adverse ruling to the High Court.
In a third case, Harrel vs. Raoul, coming out of Illinois, Plaintiff Petitioners, the Firearms Policy Coalition (FPC), FFL licensees, and others have challenged the constitutionality of the “Protect Illinois Communities Act” (“PICA”).
Illinois Governor J.B. Pritzker signed PICA into law on January 10, 2023, six months after Bruen.
The law is codified at 720 ILCS 5/24-1.9.
The Statute makes illegal civilian possession of the most popular semiautomatic rifles:
“All AK Types”
“All AR Types”
“All Thompson Rifles”
The Statute also bans the possession of many semiautomatic pistols, specific shotguns, .50 caliber cartridges, and .50 caliber rifles.
Law enforcement personnel are exempted from this Statute.
The U.S. Court of Appeals for the Seventh Circuit has vacated the judgment of a lower U.S. District Court enjoining enforcement of the ban on “assault weapons” and on .50 caliber rifles and ammunition.
Injunctions are not considered final appealable orders and the U.S. Supreme Court usually, almost invariably, avoids taking them up.
But a review of the case points to a peculiar set of circumstances that bear an uncanny resemblance to New York’s Antonyuk case.
Recall that Plaintiffs in Antonyuk had also filed a motion for a preliminary injunction.
Plaintiffs filed a motion to enjoin the Hochul Government from enforcing the “CCIA.” The U.S. District Court for the Northern District of New York granted the motion, finding, inter alia, that the Plaintiffs would likely succeed on the merits.
The New York Government appealed the decision to the U.S. Court of Appeals for the Second Circuit. The Second Circuit vacated the District Court’s Order, whereupon Plaintiffs appealed the adverse decision (an interlocutory, not a final, order) directly to the High Court.
The U.S. Supreme Court did not deny the appeal out of hand but requested a response from the State.
The AG, Letitia James, filed the State’s response, and Justice Alito allowed the Second Circuit’s Order to stand but warned the Government not to dawdle.
Nonetheless, the Court did take its own good time, ultimately ruling in favor of the State.
Other States, vehemently, virulently opposed to the civilian armed defense, have taken their cue from New York.
To understand the rationale for Petitioners’ filing of their appeal of an interlocutory order directly to the U.S. Supreme Court, in the Illinois case, one might look to an earlier Illinois case, Bevis v. City of Naperville, 85 F.4th 1175 (7th Cir. 2023).
Several of the Plaintiffs in the instant Harrel case were also Plaintiffs in the earlier case.
The Seventh Circuit case is itself, a consolidation of three cases, two handled by the U.S. District Court for the Northern District of Illinois, and the third—the parent of the Harrel case—handled by the U.S. District Court for the Southern District of Illinois.
Plaintiffs in all three cases filed motions for preliminary injunctions, either challenging portions of the Illinois PICA, or, in one case, attacking the whole of it.
The first two cases, handled by the Northern District Court, involved a challenge to the registration requirement.
The Plaintiffs objected to the imposition of a registration scheme for “assault weapons” and .50 caliber rifles.
The Northern District Court decided that the Plaintiffs were not likely to succeed on the merits and denied their motion for preliminary injunction.
In the Southern District Court case, the Plaintiffs launched a facial challenge of the entire “sprawling piece of legislation made up of 99 sections that cover a vast array of regulatory and record-keeping matters, along with the provisions of interest here [the “assault weapon” ban and the registration requirement].”
The Seventh Circuit noted that the Southern District Court—contending with a “facial” challenge to the entire Act—had started its analysis from a perspective of “irreparable harm” to the Plaintiffs, and, having found irreparable harm, enjoined the entire Act.
The Illinois Government, appalled, intended to find relief through the Seventh Circuit, just as the New York Government intended to find relief through the Second Circuit. Neither State was disappointed.
The Seventh Circuit vacated the injunction in the 2023 Bevis case, just as the Second Circuit did in Antonyuk.
The Seventh Circuit looked for support and precedent to its earlier case, Friedman vs. City of Highland Park, 784 F.3d 406 (7th Cir. 2015).
Referring to that earlier Friedman case to support its decision in Bevis, vacating the Southern District Court’s granting of Plaintiffs’ preliminary injunction, the Seventh Circuit said that its decision foreshadowed Bruen and is consistent with Bruen.
The Seventh Circuit said, in Bevis, that “we see Friedman as basically compatible with Bruen, insofar as Friedman anticipated the need to rest the analysis on history, not on a free-form balancing test.”
The Seventh Circuit is wrong. The Friedman case is not consistent with Bruen.
In Friedman, the Seventh Circuit made a pretense of looking at historical tradition. It asked,
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 creates an easement across the Second Amendment.
The Plaintiff Petitioners, not surprisingly, disagreed. They requested U.S. Supreme Court review of the decision.
The High Court should have taken up Friedman when the case came before the Court in 2015, but the Court couldn’t garner four votes necessary to review it.
Scalia and Thomas were livid.
Thomas drafted a strenuous dissent and Scalia joined him.
Taking the Seventh Circuit to task, Thomas wrote,
Based on its crabbed reading of Heller, the Seventh Circuit felt free to adopt a test for assessing firearm bans that eviscerates many of the protections recognized in Heller and McDonald. The court asked in the first instance whether the banned firearms ‘were common at the time of ratification’ in 1791. But we said in Heller 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.’ [citations omitted]
One would think the Seventh Circuit would heed the message—that it would have affirmed the District Court’s granting of the injunction, shredding Pritzker’s PICA as patently unconstitutional—especially in light of Bruen. It didn’t do that.
And the Second Circuit should have tossed the entirety of New York’s CCIA in the trash bin. That didn’t happen either.
In Bruen, Justice Thomas writing for the Majority, reiterated the point he made in his dissent in Friedman:
Drawing from this historical tradition, we explained there that the Second Amendment protects only the carrying of weapons that are those ‘in common use at the time,’ as opposed to those that ‘are highly unusual in society at large.’ Ibid. . . . Whatever the likelihood that handguns were considered ‘dangerous and unusual’ during the colonial period, they are indisputably in ‘common use’ for self-defense today.
And is that not true of semiautomatic weapons, i.e., the AR Type and AK Type semiautomatic weapons that Pritzker’s Government officiously, illegally banned through enacting PICA?
The Petitioners realized there was no point going back to the Seventh Circuit simply to be rebuffed again and again. It would be a futile waste of time and money.
The lower District Courts in that Circuit have suffered intimidation and now feel compelled to seek guidance from Seventh Circuit cases wrongly decided and wrongly reasoned, e.g., Bevis and Friedman, rather than to the U.S. Supreme Court rulings and reasoning, as they should have.
This is a very strange and distressing situation.
So, then, what happens now?
It will be interesting to see how the U.S. Supreme Court handles Harrel and the other post-Bruen cases slowly wending their way to the Court from other jurisdictions.
It is bad enough when legislatures and a government’s executive offices demonstrate disdain for the High Court. It is, however, beyond the extreme when lower Courts would exhibit the same disdain.
How will the Robert’s Court react? Circumspectly, in a measured tone, or with a few sharp slaps on the backside of recalcitrant Federal Circuit Courts of Appeal.
The time for tact, gentility, and conviviality is over. There’s too much at stake now—not least of all, for the credibility, inviolability, and purposefulness of the Judiciary.