TDR is pro bono counsel for March For Our Lives Foundation (“MFOL”) as amicus curiae in the matter Bevis, et al. v. City of Naperville, et al., No. 23-1353 (7th Cir.). On Friday, November 3, 2023, the Seventh Circuit in Bevis addressed for the first time the constitutionality of the Protect Illinois Communities Act, a law that, among other things, limits public access to AR-15 assault rifles and similar weapons. Several plaintiffs claiming that the Act violates the Second Amendment of the Constitution had moved to preliminarily enjoin enforcement of the Act during the pendency of their lawsuit. In affirming the lower court’s denial of the motion, the Seventh Circuit held that there was a “strong likelihood” that the government defendants would succeed in establishing the constitutionality of the law.
The Court first held that the implicated weapons are not “Arms” for purposes of the Second Amendment, as the United States Supreme Court interpreted the term in District of Columbia v. Heller. And, recognizing that there is no dispute that machine guns such as M16s are beyond the scope of the Second Amendment’s protection, the Court held that the plaintiffs had failed to identify a material distinction between such weapons and the weapons implicated by the challenged laws. The Court concluded on these bases that the challenged laws are beyond the reach of the Second Amendment.
The Court then held that, even if the implicated weapons are properly understood as “Arms” for purposes of the Second Amendment, the restrictions at issue are nevertheless consistent with this country’s “history and tradition” of firearms regulation. Accordingly, the Court concluded that the laws are constitutional on that alternative basis as well. Following the methodology prescribed by the Supreme Court in New York State Rifle & Pistol Ass’n. Inc. v. Bruen, the Seventh Circuit had no problem identifying numerous weapons regulations beginning at the time of the Founding that relied on a distinction between weapons designed for military or law-enforcement use, and weapons designed for personal use. The Court found that the challenged laws respect and rely on that very distinction. Particularly given the Supreme Court’s observation in Bruen that cases implicating “unprecedented societal concerns or dramatic technological changes” may require a “more nuanced approach” to the history and tradition inquiry, the Court concluded that the challenged laws are consistent with the country’s history and tradition of firearms regulation and are therefore constitutional.
MFOL is a non-profit organization of young people from across the country that seeks to promote civic engagement in support of sensible gun regulation and give voice to those who have been harmed by gun violence. On February 14, 2018, a gunman armed with an AR-15-style assault weapon murdered 17 people at Marjory Stoneman Douglas High School in Parkland, Florida. Of the 17 killed, 14 were high school students. MFOL formed in the wake of that tragedy, and it immediately began organizing the largest single day of protest against gun violence in the nation’s history. Five years later, MFOL has established itself as one of the foremost authorities at the intersection of youth-led activism and advocacy for gun violence prevention, and thousands of young people have formed MFOL chapters across the country. In the nationwide effort to enact sensible gun regulation, MFOL serves as a platform for the indispensable voice of the younger generation, and it is a key resource for those who want to see an end to gun violence in this country.
In its friend-of-the-court brief, MFOL demonstrated that, were the plaintiffs’ motion granted, the “balance of the harms” (one of the factors courts consider in assessing a motion for preliminary injunction, though one the Seventh Circuit in Bevis ultimately did not reach) weighed heavily in favor of denying the injunction. MFOL also established that the scourge of gun violence generally and mass shootings in particular constitutes an “unprecedent societal concern,” thereby meriting a “more nuanced approach” to a court’s review of history and tradition for analogous regulations with which to assess the constitutionality of the challenged laws.