Jun 29

Jun 29 Amicus Protest

Chicago, Demonstrations, Protest, Public Declarations

Today, the Seventh Circuit heard arguments regarding the constitutionality of Illinois’ ban on assault weapons—known as the Protect Illinois Communities Act—which was enacted January 10, 2023 in the wake of the Highland Park mass shooting last July 4th. Not surprisingly, gun-rights advocates challenged the ban. Gun-shop owner Robert Bevis claims the ban violates the Second Amendment. Maybe more relevant, Bevis’s lawyers also point to the economic hardship experienced by Bevis: 85% of the guns previously sold by his gunshop are now banned.

The local March for Our Lives chapter held a demonstration across the street from the Dirksen Federal Courthouse, hoping to send a message to the three-judge panel reviewing the ban: Judges Frank Easterbrook, Diane Wood, and Michael Brennan.

When I arrived at 9:10 AM—I was delayed by NASCAR closures—the crowd size was pathetic. Maybe ten or fifteen people in Federal Plaza. While judges should not be influenced by demonstrators, judges are nevertheless human. The implicit message was clear: The public does not care about assault-weapons bans; it is not a hot-button issue. The polls suggest otherwise, but the paucity of demonstrators might lead someone to a contrary conclusion.

I overheard one of the organizers say that they should wait 10 to 15 minutes before starting because of an expected a busload of demonstrators. Around 9:25 AM, the bus arrived, adding 20 or 30 people to the count. Still a pathetic showing for the three television camera crews and several print journalists in position. Normally 40 people staging a demonstration does not garner such media coverage, but the controversy over assault weapons, together with the one-year anniversary of the Highland Park massacre, brought the media out in force. Moreover, cameras are not allowed in the courtroom, so a demonstration outside the courthouse offers the needed imagery.

In fairness to the organizers, their speakers proved to highly informative—students who live with gun violence every day, two members of the Illinois Assembly (Representatives Kam Buckner and Bob Morgan), an ER physician, a Highland Park survivor, and family members who have lost relatives to gun violence. No new ground was covered, but the speakers did captivate and inspire the assembled.

One speaker asked for a show of hands, paraphrasing, “How many had been affected by gun violence—wounded themselves or had a family member or friend victimized by a gun?” Many hands went up. I didn’t catch her name, but another speaker used a penny to demonstrate the size of an auto sear, a $20 device that converts a handgun into an automatic weapon. According to this woman, once a handgun is modified, it can fire 20 to 30 rounds in less than three seconds.

I was particularly troubled by two comments. First, one of the speakers pointed to the Dirksen Federal Courthouse, screaming that the judges should be more responsive to the people on the street because we “elect” them. I don’t care what side of an issue you are on; you should get the basic facts straight if you are going to speak in public on an important issue, particularly when there are school-aged kids in the crowd. Federal judges are nominated by the President and confirmed by the U.S. Senate—Diane Wood was nominated by President Bill Clinton; Frank Easterbrook was nominated by President Ronald Reagan; and Michael B. Brennan was nominated by President Donald J. Trump. Take a remedial civics lesson before picking up a bullhorn again. Some may view this as nitpicking, but why should we believe any other information that this speaker claims is factual?

Second, after the demonstration wrapped up, I asked Ashby Beasley, who is a survivor of the Highland Park mass shooting and an activist, why I did not see lots of people from Highland Park’s March Fourth group in attendance today—they are the group that was formed in the wake of the July 4th shooting to pursue a ban on assault weapons. Beasley told me that that group focuses singularly on obtaining a Federal ban, as distinct from state bans.

Whether it is gun control, abortion rights, or any other issue, I am troubled by balkanization—small groups pursuing their individual agendas without working together to achieve the overall objective. If March Fourth knew about this demonstration, they should have fielded a contingency. If they weren’t aware—which is hard for me to believe—then the fault lies with March for Our Lives. Either way, these groups should be working together. Given the impetus behind today’s demonstration, there are at least three problems with March Fourth’s absence.

First, even though the assault-weapons ban before the Seventh Circuit was an Illinois rather than a Federal ban, elected officials in Washington, D.C. undoubtedly take note of crowd sizes. Had there been 10,000 people in Federal Plaza today, all the members of Illinois’ congressional delegation would have seen the headlines in the Chicago Tribune and the Chicago Sun Times. Maybe some otherwise recalcitrant downstate or collar-county representatives would have reconsidered their positions in opposition to a Federal ban. While March Fourth’s presence would not likely have pushed the number of attendees into the thousands, 100 or 200 additional demonstrators would have made a significant difference.

Second, in the courtroom, the plaintiffs were arguing to the Seventh Circuit that the 24 million assault weapons currently in circulation cannot be banned because they are in “common usage.” The plaintiff cited New York State Rifle & Pistol Association v. Bruen, 591 U.S. __ (2022) to support its “common usage” argument. Both Judge Frank Easterbrook and Judge Diane Wood expressed skepticism, with Woods questioning the plaintiff’s logic: Should a “popularity contest determine a constitutional principle[?]”

Some other court, however, might rely on the “common usage” theory as a basis for invalidating an assault weapons ban, including a Federal ban. Given that possibility, the folks behind March Fourth should have been out in force, offering a counter balance to so-called popular opinion in favor of assault weapons.

Third, as we have seen in the abortion-rights debate, public policy questions often pose both Federal and state questions. When it behooves a litigant to look to Federal law, then Federal law is relevant. Other times, the aggrieved view state law as the avenue leading to the desired outcome. For example, the Pro-Lifers spent five decades arguing that the legality of abortion should be determined at the state level. Now that Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022) is the law, the Pro-Lifers are now looking to a Federal ban because they find themselves unable to convince all 50 states to ban abortion.

The effort to obtain a Federal ban on assault weapons makes perfect sense for those who advocate gun control. However, given the makeup of the Senate and the House, convincing individual state legislatures to ban assault weapons makes short-term practical sense. Bans in several states are better than no Federal ban.

To conclude, today was a missed opportunity given the media’s interest in this demonstration. To succeed, all advocates for assault-weapons bans should show up at demonstrations regardless of the specific approach individual groups are pursuing. March for Our Lives and March Fourth should be coordinating and supporting each others’ efforts.

Like it or not, demonstrations are visual manifestations of Friedrich Nietzsche’s will to power. A demonstration’s effectiveness is directly correlated with crowd size. The images on television and in print media are more important than what was said.

I can speak directly to that point. I attended the first March for Our Lives demonstration on March 24, 2018 in Washington, D.C. I don’t remember a word that was said that day, but I can still picture the hundreds of thousands of people lining Pennsylvania Avenue as I looked up and down Pennsylvania Avenue from the now-shuttered Newseum’s upper deck.

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