Because a three judge panel of the Seventh Circuit Court of Appeals just upheld, 2-1, Illinois’ “assault weapon” ban in Bevis v. Naperville (which is actually six separate challenges to “assault weapon” bans in Illinois, consolidated), and mangled BRUEN in the process. To do this, the lying bastards started with the BS “weapons of war” argument. And went downhill from there.

Honestly, this decision reads like something you might expect from the Ninth Circuit.

We find substantial support for the proposition that the Arms protected by the Second Amendment do not include weapons that may be reserved for military use.

Because obviously AR-15s are just like “a nuclear weapon such as the now-retired M388 Davy Crockett system, with its 51-pound W54 warhead.” Seriously; they equated semi-auto rifles to nuclear warheads.

And to support that position, Easterbrook and Wood lied about Supreme Court rulings, starting with MILLER, 1939 which said exactly the opposite. This Court resorts to citing the dissent to magically turn military use into common, lawful civilian use, and pretends HELLER said that.

But after Heller, we know Miller does not address a weapon’s military use. Because the National Firearms Act of 1934 targeted the firearms most commonly used by criminals and gangs, Miller’s “lawful use” language relates to criminal use, not military use.

The term “lawful use” doesn’t even appear in MILLER. It had no “lawful use” test. It only used a militia use test:

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

HELLER addressed civilian use of weapons not specifically acknowledged as militarily useful, and asked if possession of those by civilians could be banned. The court concluded that civilian weapons in common, lawful use could not be banned; that there is an individual right to them. And that the right to those not necessarily military-style weapons was subject to reasonable limits.

HELLER didn’t overturn MILLER; it built on it, and added to it. Those judges damned well know what MILLER and HELLER really said. The fact that they twist the words, and outright lie, about them proves their intent was not innocent.

Now that Easterbrook and Wood have pretended that “weapons of war” aren’t 2A-protected, they have to “establish” that AR-15s are military weapons.

Coming directly to the question whether the weapons and feeding devices covered by the challenged legislation enjoy Second Amendment protection, at the first step of the Bruen analysis, we conclude that the answer is no. We come to this conclusion because these assault weapons and high-capacity magazines are much more like machineguns and military-grade weaponry than they are like the many different types of firearms that are used for individual self-defense (or so the legislature was entitled to conclude).8 Indeed, the AR-15 is almost the same gun as the M16 machinegun.

How do they know?

The only meaningful distinction, as we already have noted, is that the AR-15 has only semiautomatic capability (unless the user takes advantage of some simple modifications that essentially make it fully automatic), while the M16 operates both ways.

Sure, an illegally modified AR-15 is is the same thing as an M16, just illegally mounting a 120mm cannon on a Trabant makes it an Abrams M1A1 Main Battle Tank.

Speaking — currently — illegal modifications, these jokers used a timely example.

The similarity between the AR-15 and the M16 only increases when we take into account how easy it is to modify the AR-15 by adding a “bump stock” (as the shooter in the 2017 Las Vegas event had done) or auto-sear to it, thereby making it, in essence, a fully automatic weapon.

Personally, I would have skipped that one, since the same day they issued this ruling, SCOTUS — facing a multi-Circuit split on the bump-stock ban — granted cert to Garland v. Cargill, challenging the ban.

So… they’ve lied their way into declaring that the 2A doesn’t protect “weapons of war,” and that AR-15s are in that class. Now they also had to deal with BRUEN‘s general, historical legal tradition test, which they handled with still more verbal manipulation and selective editing.

The analysis then moves to second step, which calls on the “government [to] justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id. The Court predicted that this second step would be relatively easy in some instances, when historical analogues are easy to find. But in other instances, it recognized that the task would be challenging. It singled out “cases implicating unprecedented societal concerns or dramatic technological changes,” which “may require a more nuanced approach.”

These two would have you believe that if something is new enough, then general, historical legal traditions don’t apply. But what they left out from BRUEN is this part.

Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it.

Yes, the Constitution and the Second Amendment still apply to “new” things like the five decades-old design of the AR-15. Some restrictions on how they are used might be constitutional, but a ban isn’t.

As for “dramatic technological changes” that those early folks could never imagine…

James Madison, known for his role in drafting the Bill of Rights (including that pesky 2A) lived through the rise of repeating firearms, breechloaders, paper cartridges, percussion caps, metallic cartridges, pinfire cartridges, centerfire cartridges, revolvers, and mass production of firearms.

Heck, an early machinegun was pitched to the US War Office in 1812, and patented in 1813 — during Madison’s presidency (and was a refinement of a 16th century machinegun).

Yet never once did Madison stop and say, “Whoa, guys! We didn’t have any of this new shit in mind. The Second Amendment is just for muskets.”

Speaking of “patented”, not only could the Founders envision dramatic technological changes, they counted on it and deliberately promoted it.

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Yes, liars, the BRUEN test applies to AR-15s. And I challenge you to provide a citation of the nation’s general, historical legal tradition of banning civilian possession of “weapons of war.” Bear in mind you’ll have to explain away another pesky provision of the Constitution.

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

In case the judges are unfamiliar with Letters of Marque pay attention, too):

Letter of marque, the name given to the commission issued by a belligerent state to a private shipowner authorizing him to employ his vessel as a ship of war. A ship so used is termed a privateer.

Not only was civilian ownership of real weapons of war not banned, they — again — counted on it. Muskets, rifles, cannon, warships; all of them. Moreso, in the case of muskets or rifles, they required private possession of those “weapons of war.”

Granted, these robed morons did cite some legal “traditions” that they would have you believe support a ban on an entire arbitrary class of firearms. But what they came up with were a series of local ordinances barring discharge of muskets and cannon in town, some isolated bans on Bowie knives, or openly carrying certain types of firearms.

They couldn’t find anything in relevant history of a general nature; and remember that BRUEN specifies that isolated local laws don’t count:

The bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry.

There’s nothing of a general law citation until the National Firearms Act of 1934, 143 years after the ratification of the Second Amendment. So my challenge stands.

The third member of the panel, Judge Brennan sanely dissented with his crazed colleagues. While he also addressed procedural issues with the passage of the state ban, he hit on the issues I’ve covered; albeit more formally and politely. Like me, he took issue with Easterbrook and Wood’s mangling and misinterpretations of HELLER and BRUEN. He also objected their “It’s military, so it isn’t protected” position: arms are arms, they’re all protected; some can be regulated but not banned.

I liked this bit that Brennan included, about the whole scary “AR-15s are weapons of war” thing:

The AR-15 is a civilian, not military, weapon. No army in the world uses a service rifle that is only semiautomatic.

That’s a point I’ve been raising for years. None do; the last country I found using them switched to select-fire assault rifles three decades ago.

All in all, I look forward to this being appealed to SCOTUS. I’m sure Clarence Thomas will insist the Court take this up, just so he can judicially bitch-slap Easterbrook and Wood for shredding BRUEN and HELLER.