Update on the Naperville case / Application for SCOTUS injunction pending appeal to Justice Barrett

Monday marked the deadline for a response from Naperville in the case involving the Naperville ban on the sale of popular defensive firearms as well as the challenge to the Illinois Firearm Ban Act.  Justice Amy Coney Barrett asked for the response from Naperville, and not only did Naperville file theirs, but Guns Save Life’s legal team filed an Amicus brief in support of Robert Bevis and Law Weapons, as did the NRA’s legal team.

First up:  The defendants’ response (Naperville), crafted pro-bono by Perkins Coie.  

In this case, Naperville got what they paid for from Perkins Coie and the Brady Campaign.

Their response is… weak in facts and long in make-believe and wishful thinking.

I don’t have enough time or Bulleit Bourbon to go through the whole thing in detail, but here are some highlights from my first three fingers.

From page 3:

Whether the Second Amendment protects the commercial sale of a limited
category of assault rifles within one municipality’s borders has never been addressed
by this Court, let alone resolved in Applicants’ favor. Indeed, lower courts have
consistently ruled that the Second Amendment does not confer a right to sell firearms.

We’ll see what Justice Barrett thinks about that.

Page 16:

The “balance of equities” and “overall public interest”
overwhelmingly favor Naperville here. Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 26 (2008).

Attempting to resurrect interest-balancing.

Here’s our legal team’s Amici Brief.  It’s short and to the point.

Money quote:

It is
evident that, while many courts got the message after Bruen, other courts still
harbor an entrenched recalcitrance to recognize and protect Second Amendment
rights. New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).

And here’s the NRA/NSSF Amici…  exceptionally well done, too:

filed an “emergency” motion in the Seventh Circuit—one day after this Court called
for a response to this application, and after giving the district court just two business
days to consider the (non-emergency) stay request that it filed in that court…

Needless to say, all that haste was not justified by the need to avoid the
irreparable injury of lost constitutional rights. It was instead in service of the state’s
effort to halt the sale of arms that have been perfectly lawful in Illinois for the better
part of a century, and in some cases even longer. Nevertheless, the Seventh Circuit
entered an extraordinary one-judge order wiping away the Barnett injunction a mere
two days later,without even giving the plaintiffs a chance to respond.

If you think that’s good, then you’re gonna LOVE – L – O – V – E – this:

More extraordinary still, that
order indicates that at least some members of the Seventh Circuit seem to believe
that the Seventh Circuit’s pre-Bruen decisions from the two-step era upholding
similar, local-level bans on common semiautomatic firearms and standard-capacity
magazines somehow remain good law, even though those decisions did not apply
Bruen’s historical tradition test, but rather upheld the bans on the grounds that they
[1] did not “ban[] weapons that were common at the time of ratification or those that
3
have ‘some reasonable relationship to the preservation or efficiency of a well
regulated militia,’” and [2] did not deprive law-abiding citizens of the right to keep
and bear all firearms, and thus supposedly left them with “adequate means of selfdefense.” Friedman v. City of Highland Park, 784 F.3d 406, 410-12 (7th Cir. 2015);
Wilson v. Cook Cnty., 937 F.3d 1028 (7th Cir. 2019).

More…  after another pour:

Slapping the label “assault weapon” or moniker “weapon of war” on firearms
owned by millions of Americans for lawful purposes such as self-defense does not take
them outside of the Second Amendment’s protection. Nor does dubbing standardissue magazines “large capacity ammunition feeding devices” change the fact that
tens of millions of Americans own hundreds of millions of them as integral
components of arms that they keep and use for self-defense and other lawful purposes
like target shooting and hunting. The arms Illinois has banned are not just in
common use; they are ubiquitous.

Oh, this is brutal.

Unfortunately, that has not stopped Illinois and other states from continuing
to pass such laws in the wake of Bruen. Indeed, the response of these states to Bruen
has been perverse to the point of purposeful defiance. Instead of treating Bruen as
an occasion to reconsider existing restrictions on constitutional rights of law-abiding
citizens, they have enacted new “assault weapon” and/or “large-capacity magazine”
bans, with more still on the way…

Unfortunately, the Seventh Circuit has already wiped that injunction away.
Rather than respect the considered judgment of the district court that entered a
preliminary injunction after full briefing and argument and preserve the status quo
that prevailed for the better part of a century of protecting the common arms that
Illinois has now outlawed—or even wait for this Court to resolve this Application—
the Seventh Circuit acted without even giving the Barnett plaintiffs a chance to
defend the injunction. Worse still, the Seventh Circuit’s order indicates that at least
some members of that court apparently continue to believe that its pre-Bruen cases
remain good law, even though they failed to apply either Bruen’s history and tradition
test or the “common use” test that this Court has thrice laid out. That is an untenable
state of affairs—and not just because a court of appeals has no license to disregard this Court’s clear holdings. The denial of constitutional rights even on a temporary
basis is the classic irreparable harm supporting a stay. By contrast, the desire of a
state to impose new restrictions on commonly held firearms in defiance of a recent
and emphatic decision of this Court should not be given effect unless and until this
Court has considered and upheld the law on the merits. While one would have hoped
that the Seventh Circuit would recognize as much, its actions in the Barnett case
leave little doubt that the best course of action is for this Court to step in and grant
injunctive relief itself. 

Read the whole thing.  It’s a work of art.

NOTE:  All updates can be found here at the SCOTUS website.

A couple of YouTube vids worth watching: