Trump Judge Rules Guns Are Sort Of Like Airbags. Nice, Murderous Airbags.
There are a lot of ways to strike down a gun control law. Judge Stephen McGlynn chose one of the dumbest.
It’s not surprising that a Trump judge would strike down a gun regulation. Republican judges do that all the time. Between Heller and Bruen, there’s now a collection of boilerplate, ahistorical gibberish that judges can cite so they can hem and haw about the “grave seriousness” of the threat but then strike down the law as overbroad anyway, no matter how narrowly tailored it might be. You might think it should be illegal to have that, but the original public meaning says the Founding Fathers EXPECTED your neighbor to own a rocket-propelled grenade launcher! It’s dumb, but it’s all part of the game.
Judge Stephen McGlynn does not understand that game:
Why are there small lifeboats on gigantic steel ocean liners? Why do we spend thousands equipping our vehicles with airbags? Why do we wear seatbelts and place our infants in safety seats? Why do we build storm shelters under our homes? Why do we install ground-fault interrupter outlets by sinks and bathtubs? Why do we get painful inoculations? Why do we voluntarily undergo sickening chemotherapy?
And why do we protect ourselves with firearms?
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This is how he began a 168-page opinion. He sat down and thought, “I’m going to come up with some brilliant analogies!” and then decided to OPEN the opinion with this. Which, in some ways, you’ve got to appreciate because 168 pages is a lot and it’s nice that he broadcast that this wouldn’t amount to a work of serious legal thought right off the top.
Why are there small lifeboats in gigantic steel ocean liners? Because sometimes they sink. But — and I can’t stress this part enough — when the cruise ship isn’t sinking, no one uses lifeboats to assassinate kindergartners. Child safety seats and airbags have tragically cost children’s lives in the past and we’ve reworked how we use them because of it. But those were still instances of the safety device not working properly and not people using airbags as a weapon of destruction.
“And why do we protect ourselves with firearms?” First of all, the meaning of “protect ourselves” is stretched to the breaking point here. The law at issue, The Protect Illinois Communities Act, banned new sales of AR-15s and required existing owners to register their rifle with the state police. Cue the eerie music and imagine walking home from your office one night, hearing a strange noise behind you, and reaching into your computer bag to pull out your self-defense… military-grade longarm rifle? There’s a reasonable policy argument that the fixation on AR-15s is misplaced because handguns do far more death and destruction on a day-by-day scale, but at least with a handgun there’s a non-ludicrous self-defense hypothetical.
AR-15 regulations are a politically easy lift given the profound lack of any serious civilian use case for the weapon beyond killing children and compensating male inadequacy. Its proponents call it the modern sporting rifle even though you’re hard-pressed to find someone crouching in a blind waiting to blow away a deer with an AR-15 as opposed to some bolt-action rifle or — if they’re really hard — a bow and arrow. The consumer-grade version of America’s default military rifle is one of the most popular gun purchases because, like the old Hummer, there’s a class of guys (and it’s overwhelmingly guys) who will buy cloned military gear so they can play make-believe with their buddies instead of facing life as a terminally out-of-shape insurance adjuster.
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“SEAL Team Sucks,” if you will.
They may not, in the aggregate, kill as many as the overwhelmingly supply of handguns on the streets, but banning AR-15s presents an easy, narrowly tailored regulation that fits squarely within the Second Amendment’s text inviting states to regulate weapons that could be used in war.
Too often, the perils we face are forced upon us by other people. By people who are negligent, reckless, insane, impaired, or evil. Sometimes it is the proverbial lone wolf; sometimes, it is the whole wolf pack. Truly, life comes at you quickly.
And who comes to our aid in times of peril? Sometimes, it is the police or first responders; other times it is healthcare professionals; and sometimes it is family, friends, or neighbors. Sometimes, it is no one.
“Sometimes, it is no one.” The Uvalde police did nothing while a gunman strolled the halls of a school gunning down kids because the police did not feel equipped to handle a guy with an AR-15. It isn’t advancing the judge’s case that the AR-15 provides the last line of defense when no one else can help when the AR-15 is the reason no one else will help.
What the hell is this?
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This illustration posits the question on the top line, written in German, “[w]hich two animals are most like each other?” Beneath the image are the words “[R]abbit and duck.” The image distinguishes perception from interpretation. If you see only a duck, your interpretation of the data is too narrow. Yet once you become aware of the duality of the image, your interpretation of the data allows you to see both a duck and a rabbit.
I see only a jackass.
Put aside the constitutionality of it all, this is just sophomoric legal writing. There are clerks who are going to come out of these chambers and employers should be very cautious about assuming they’ve learned even rudimentary writing skills from this ding dong. And any law students eyeing a federal clerkship should consider whether hitching their reputation to this guy is a shot in the arm or an albatross. Because we’re already entering an era where “federal clerkship” isn’t the automatic chit it once was.
“Guns are a lot like airbags, no, no, maybe they’re like storm shelters… hey, do you see a candlestick or two faces?” isn’t the opening of a court opinion, it’s a deleted scene from Forrest Gump.
But again, perhaps it’s for the best that this inevitable blip in the nation’s constitutional order will be marked by caselaw like this. When the time comes to dismantle this garbage line of reasoning — wholly at odds with the nation’s history and tradition of gun regulation from before the Founding until Heller — we’re going to appreciate that it rests on powerful legal reasoning like “Why are there small lifeboats on gigantic steel ocean liners?”
Truly the second coming of Learned Hand over here.
(Opinion on the next page…)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
