Ill: Federal Judge Stephen P. McGlynn Issues Injunction Against Gun Ban, Citing Second Amendment

Federal Judge Stephen P. McGlynn

In the United States District Court for the Southern District of Illinois, in the Seventh Circuit Court of Appeals, Federal Judge Stephen P. McGlynn has issued a well reasoned and argued opinion covering several challenges to the "Protect Illinois Communities Act" (PICA). The opinion puts in place a temporary injunction against the enforcement of PICA. 

PICA bans the ownership of over 190 models of firearms and criminalizes the possession of magazines which hold over 10 rounds, among other things. Judge McGlynn filed the opinion on April 28, 2023. The opinion is straightforward. In the fifth paragraph, after describing the events leading up to the passage of PICA, Judge McGlynn expounds on rights Americans enjoy, which are protected by the United States Constitution.  From the opinion: 

As Americans, we have every reason to celebrate our rights and freedoms, especially on Independence Day. Can the senseless crimes of a relative few be so despicable to justify the infringement of the constitutional rights of law-abiding individuals in hopes that such crimes will then abate or, at least, not be as horrific? More specifically, can PICA be harmonized with the Second Amendment of the United States Constitution and with Bruen? That is the issue before this Court. The simple answer at this stage in the proceedings is “likely no.” The Supreme Court in Bruen and Heller held that citizens have a constitutional right to own and possess firearms and may use them for self-defense. PICA seems to be written in spite of the clear directives in Bruen and Heller, not in conformity with them. Whether well-intentioned, brilliant, or arrogant, no state may enact a law that denies its citizens rights that the Constitution guarantees them. Even legislation that may enjoy the support of a majority of its citizens must fail if it violates the constitutional rights of fellow citizens. For the reasons fully set out below, the overly broad reach of PICA commands that the injunctive relief requested by Plaintiffs be granted.

Judge McGlynn expounds on the immediate harm to the plaintiffs. He explains any denial of Constitutionally protected rights is an immediate harm. Even so, Judge Stephen P. McGlynn, argues (arguendo, "for the sake of the argument"), there are other, obvious, immediate harms. Plaintiffs may not purchase firearms or magazines they desire. Plaintiffs may not sell existing inventory. 

But for PICA, Barnett and Norman would purchase additional banned firearms and magazines. Should either one attempt to do so, he could face criminal penalties. There is no monetary award that can compensate for such an injury and make them whole.

There is also no question that both Hoods and Pro Gun have lost income and will continue to do so while PICA remains in effect. The declarations of both James Hood and Paul Smith, owners of Hoods and Pro Gun respectively, expressed that a large percentage of their income was derived from sales of items banned under PICA and that they currently had in their possession tens of thousands of dollars worth of inventory that they have been prohibited from selling since PICA’s effective date.

Of interest, Judge McGlynn finds arm braces are arms protected by the Second Amendment, at least in as much as they are designed for use by people with disabilities. McGlynn quotes the ATF to bolster this argument.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) has recognized that such braces are necessary for those with disabilities to use a firearm by directing that “[t]his rule does not affect ‘stabilizing braces’ that are objectively designed and intended as a ‘stabilizing brace’ for use by individuals with disabilities.”

Judge McGlynn does an admirable job of pointing out the obvious, and making the obvious arguments. This may seem simple and clear. It is necessary for a judge to do so. In the Ninth Circuit, Judge Benitez has done the heavy lifting. In the Seventh Circuit, Judge McGlynn is doing his part. The arguments are straightforward and obvious. The politics are where the heavy lifting is necessary. Both judges are bucking Progressive headwinds of long duration. Judges McGlynn and Benitez have facts, text, and rationality on their side. 

Their opponents have two main philosophical arguments.  

The two arguments are, first: "That was then, this is now." This is a major component of Progressivism. Things change. Things change fast. Political decisions have to be made fast to react to the change. The argument is in opposition to the philosophy of the Constitution. The founders understood human nature does not change. They understood: it is human nature to attempt to use emotional events to push through unwise change, partisan change, change to favor special interests,  quickly.

The Second argument is: Experts know what is better for you than you do. Therefore there should be a government by experts, and there should not be any limits on the power of government. Limits on government only prevent the government from doing good things for you. Therefore, limits on government power are bad. This is the root of "means/ends" arguments. 

Both these philosophical arguments have failed real world tests.

Fast decisions based on emotional arguments almost always are decisions which are bad for the people as a whole. Unlimited governments tend to rule for the benefit of the those in charge, to the detriment of everyone else. Philosopher kings tend to find philosophical arguments to support debauched lifestyles without responsibility or accountability. 

As noted by founding father John Adams:

“If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself.”

Many governments have risen in the centuries since Adam's profound words. Many have attempted to show themselves an exception. All have failed.  Limits on government are necessary. The latest fad is to claim the Chinese Communist Party in China is an exception. The trend appears to be against them. 

Judge Stephen P. McGynnis is an example of the principled sort of man who is necessary to use the government to limit itself. 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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